Since the case involving the constitutionality of the Affordable Care Act last Term, no oral arguments before the Supreme Court have been more anticipated than those on the two same-sex marriage cases to be argued this week: United States v. Windsor, re the Defense of Marriage Act (DOMA); and Hollingsworth v. Perry, re California’s Proposition 8.
The Court’s web site provides visitor information and a guide for those attending their first oral argument. But that can hardly prepare one for the scene at the Court on those days. The lines to attend the oral argument began forming last Thursday night and are made longer by those who are paid to stand in them, holding a place for others. By Tuesday morning, despite bad weather on Sunday and Monday, there likely will be many times more people in line than possibly could attend even a few minutes of oral argument. Thousands more will be there for demonstrations and rallies.
Why the huge interest in these arguments? Last November, before the Court had decided to hear the cases, SCOTUSBlog’s Tom Goldstein provided some historical context:
I have never before seen cases that I believed would be discussed two hundred years from now. Bush v. Gore and Obamacare were relative pipsqueaks. The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound. So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.
The cases present a profound test of the Justices’ judgment. The plaintiffs’ claims are rooted in the fact that these laws rest on an irrational and invidious hatred, enshrined in law. On the other hand, that describes some moral judgments. The Constitution does not forbid every inequality, and the people must correct some injustices (even some grave ones) themselves, legislatively.
Surprising some observers, the Court decided to hear both cases. The briefs have been filed. Possible outcomes have been anticipated, assessed and predicted by many observers (for example: here, here, here and here) and diagrammed here. Of course, much speculation focuses on the roles of Justice Kennedy and Chief Justice Roberts.
The arguments will be extensively covered by traditional press and social media. Although the Court has never allowed television cameras to show the Court’s proceedings, audio recordings will be made available at the Court’s web site within hours of the arguments. But it won’t be necessary to wait that long for initial reports. Among others, The New Yorker‘s Jeffrey Toobin reports that he’ll be live-tweeting from the Court.