Busy day at the Supreme Court. 6 opinions issued!
Now that we are well into June, the “major” cases that the Supreme Court has taken up in the current Term are beginning to be decided. For dates when opinions will be released, see the Mondays marked in blue on the calendar on the Court’s home page.
One such case is Zivotofsky v. Kerry, a/k/a the Jerusalem passport case, decided on Monday. The Court struck down §214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, which directed the secretary of state, upon request, to record “Israel” as the place of birth of a U.S. citizen born in Jerusalem. In a 6-3 decision, the majority held that Congress had intruded on the power to recognize foreign nations and governments, designated to the President by Article II of the Constitution.
Numerous commentators have written about the decision.
- Michael Dorf: Zivotofsky May Be Remembered as Limiting Exclusive Presidential Power
- Opinio Juris: reflections by Julian Ku, Deborah Pearlstein and Peter Spiro
- Washington Post: Peter H. Adler, A Major Victory for Executive Power at the Supreme Court
- SCOTUSblog: Curtis Bradley, Zivotofsky and Pragmatic Foreign Relations Law
- SCOTUSblog: Eugene Kontorovich, Zivotofsky Was Not About Recognition by Congress or the President
- SCOTUSblog: Alan B. Morrison, Symposium: President wins in Zivotofsky: Will there be another battle?
- SCOTUSblog: Michael D. Ramsey, Justice Thomas gets it right in Zivotofsky
- Jack Goldsmith: Why Zivotofsky Is a Significant Victory for the Executive Branch
Still to come this month are the highly anticipated King v. Burwell (which challenges IRS regulations extending tax credits to coverage purchased through exchanges established by the federal government, involving the health insurance of millions of Americans) and Obergefell v. Hodges (the same sex marriage cases).
Due to the extraordinary public interest in the oral arguments held today at the U.S. Supreme Court in Obergefell v. Hodges and the other same-sex marriage cases, the Court has made the audio recording of the argument available on the same day: HERE.
The transcript of the oral argument will be made available later today on the same page.
UPDATE: The Court posted the audio file and transcript on the second question in Obergefell here.
An earlier post in this blog reported on the status of the same-sex marriage cases that are pending before the U.S. Supreme Court.
At that time (March 18), as noted on SCOTUSblog’s merits cases section, most of the amicus curiae briefs that had been filed at that time supported the rights of those seeking to establish a Constitutional right to marry. In recent weeks, the filing of briefs has continued, and the Court has received numerous briefs that support the state laws that prohibit same-sex marriages; these include those of the Republican Platform Committee, the Concerned Women for America and the Conference of Catholic Bishops.
SCOTUSblog continues to be a major source of legal analysis on the case and the arguments of the parties. Lyle Denniston has posted the first three of four preview articles summarizing (1) the perspective of the same-sex couples who have challenged laws prohibiting recognition of their marriages; (2) the position of the state governments defending their laws, and (3) the amicus briefs supporting the couples. A fourth post, summarizing the amicus briefs supporting the state governments, is forthcoming.
As the date of oral argument (April 28) approaches, news and commentary on the cases is increasing, including articles anticipating an expected ruling in support of the couples and the relationship of the marriage cases to the “religious freedom” laws proposed or adopted in some stated. See, e.g., these articles in NPR, Slate and The Huffington Post.
Over the past year, no U.S. legal issue has generated more news coverage and commentary than the legal status of same-sex relationships, particularly the questions whether the Constitution requires states to grant marriage licenses to same-sex couples and to recognize such licenses grated in other states.
In June 2013, the Supreme Court decided United States v. Windsor (2013), which struck down as unconstitutional a provision in the Defense of Marriage Act (DOMA), which defined “marriage” under federal law to exclude same-sex couples. After Windsor, numerous federal and state courts ruled that the Constitution requires states to recognize same-sex marriages. In November 2014, the U.S. Court of Appeals for the Sixth Circuit reached a different result, upholding bans on same-sex marriage under the laws of several states.
By granting certiorari in cases from the four states comprising the Sixth Circuit–Bourke v. Beshear (KY), DeBoer v. Snyder (MI), Obergefell v. Hodges (OH) and Tanco v. Haslam (TN)–the Supreme Court decided to address two questions left unresolved by Windsor. (Click below to expand image.)
The Court has scheduled oral argument for April 28. In the past two weeks, dozens of briefs have been filed. Many of them are amicus curiae (or “friend of the court”) briefs, filed by persons or entities that are not parties to the case but wish to provide their perspectives to the Court. Most of them–including those of The American Psychological Association, The Cato Institute and the United States government–support the right of same-sex couples to marry. The Court’s decision is expected by the end of June, with these cases among the last to be decided in the Court’s October 2014 Term.
For those monitoring the topic, some of the best information sources are organizations that have been involved in the legal battle–e.g., Freedom to Marry and Lambda Legal. Other good sources include The New York Times and SCOTUSblog.
Like most law school libraries, the Fineman & Pappas Law Libraries collect books about Supreme Court Justices, including biographies and analyses of their jurisprudence. New titles about the members of the Rehnquist and Roberts Courts continue to arrive, such as Bruce Allen Murphy’s Scalia: A Court of One and Ralph Rossum’s Understanding Clarence Thomas.
It’s easy to discover other titles using the BU Libraries search engine. One approach is to start with a known title and use the record for that book to locate others. For example, starting with the record for the Murphy book on Scalia, the “More Information” tab provides the Library of Congress subject headings assigned to that book. By clicking on one of those headings (e.g., “United States. Supreme Court — Biography”), the user can retrieve a list of items that have been assigned the same subject heading. That is well over 100 books.
For a more refined list, the Advanced Search feature allows the user, for example, to retrieve just records for books published in the last 10 years. The resulting search retrieves 33 titles. (Click image below to enlarge.)
Another approach is to use a basic keyword search. Limited to books from the last 10 years, the keywords “supreme court biography” retrieved 101 titles.
See the Help menu here for guidance on searching for books, for articles, or for “everything” within the scope of a BU Libraries search. For other tips on research strategy, ask a reference librarian.
Many tools are available to you to locate dockets, briefs and other documents generated while a case is pending before a court–at any level. This session will focus on how to use some of these tools, including court web sites, Westlaw Next and Bloomberg Law, among others.
Sessions of this class are offered in Room 335 on:
Tuesday, Feb. 24, 9 a.m. (LLM preferred) and 1 p.m.
Friday, Feb. 27, 12 p.m.
Readers of this blog have seen frequent references to SCOTUSblog, one of the gems in the legal blogosphere.
There are many reasons to follow SCOTUSblog. To start, it is an indispensable research tool for those monitoring cases before the Supreme Court–a free source for news about filings, rulings on certiorari petitions, oral arguments, new opinions and more. Coverage and analysis by veteran Supreme Court reporter Lyle Denniston provides a level of coverage of the Court that is available nowhere else (see, e.g., Denniston’s coverage of the array of cases addressing the law related to same-sex marriage). And the Merits Cases section of the site provides detailed coverage on each case the Court has decided to hear on the merits, including docket information, news stories and links to all the briefs filed in the case.
Other features include commentary and debates on various topics (such as Originalism and the Supreme Court); statistical analysis of Court business; and SCOTUSBlog on Camera, featuring interviews with Justices, scholars and journalists (e.g., Justice Scalia, Dahlia Lithwick, Randy Barnett).
There are various ways to track SCOTUSBlog, including use of a RSS Reader to receive new posts, or following the Twitter feed and using links to retrieve stories. If you haven’t already done so, check it out.
A previous post addressed resources for cases pending before the Supreme Court. Most of those are useful for cases decided in the recent past; for example, SCOTUSblog’s Merits Cases section provides news coverage, briefs, transcripts and other information for cases dating back to the Court’s 2007 Term.
When looking for information about older cases, there is a range of resources you can consult.
Suppose you were researching the landmark case concerning a criminal defendant’s right to counsel, Gideon v. Wainwright, 372 U.S. 335 (1963). The case is available in PDF (United States Reports) through the U.S. Supreme Court Library in Hein Online. Free Internet versions include the case law component of Google Scholar.
Briefs from the case are available through U.S. Supreme Court Records and Briefs, 1832-1978. Search and browse features are available to locate the seven documents provided for Gideon, including a Transcript of Record, briefs by the petitioner and respondent, and several amicus curiae briefs. Another good source for briefs is Westlaw Next: when viewing the case, select the Filings tab from the Keycite information for that case and select among available documents.
There is a large body of secondary literature that discusses the case, including legal journal articles, books (notably Gideon’s Trumpet, by Anthony Lewis), historical accounts, even a television production. Useful discovery tools include Google Scholar (especially for interdisciplinary research); combined law review databases on Westlaw Next and Lexis Advance; and after retrieving the case, using the “Citing References” tab on Keycite (Westlaw Next) or the “Other Citing Sources” link in Shepard’s Citations (Lexis Advance).
The BU Libraries Advanced Search engine can be used to find materials that focus on the case: searching by the name of the case, or using keywords such as “gideon” and “right to counsel,” retrieves many articles and books. Also, using “gideon” as a keyword while searching for titles related to criminal procedure allows one to locate discussions of the case in topical books, such as this one.
For information on the Supreme Court and cases pending before the SCOTUS, the law library offers a wide range of commercial databases, along with free Internet resources.
These resources can provide almost anything you may want to know about a case at the Court. For an example, consider Zivotofsky v. Kerry, a case involving the constitutionality of a statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as “Israel” on a United States passport. The Court’s web site provides docket information about the case, and much else: after the case was argued last week before the Justices, the transcript was posted later that day; and the audio recording of the argument was posted on Friday afternoon, following the Justices’ conference.
Among sources that compile information about the case, see SCOTUSblog for links to the briefs on the case; news coverage and links to commentary on the case; and a link to the lower court decision, which held the statute in question unconstitutional.
Among subscription services, Bloomberg BNA’s U.S. Law Week provides several useful tools for tracking the case, including the case summary from the Supreme Court Today Navigator, and news coverage at all stages of the case–e.g., the story on last week’s argument. Major general newspapers, such as The New York Times and The Washington Post, are also excellent sources.
For news once the Court issues its opinion in the case, try also The Supreme Court Bulletin (syllabi of new opinions from Cornell’s LII) or Justia’s Opinion Summaries. For up-to-the-minute coverage, nothing beats the Twitter feeds of SCOTUSblog, other news sources or legal correspondents who cover the Court (Adam Liptak, Nina Totenberg).