U.S. Supreme Court

The U.S. Supreme Court has decided to take up a case that could reshape the contours of copyright law: whether Aereo's streaming service violates the copyrights of broadcasters. It appears that an evenly divided court may hear the case since Justice Alito did not participate in the decision to grant certiorari: 011014zr_bp24.pdf

Whether history and what the Founding Fathers thought about things controls how we interpret the American Constitution is going to get another ride in the U.S. Supreme Court in the upcoming term. USA Today reports on the historical issues implicated in the case in which the justices will decide the constitutionality of the president making appointments during Congressional recesses: "For two centuries, presidents have found ways to get around Congress in order to fill important positions in their administrations. Now the Supreme Court is set to decide if what's common is constitutional. Sound backwards? Perhaps. When it comes to the law, however, history isn't always the best guide. Take prayer: When the justices in November debated the practice of opening government meetings with an invocation, which dates back to the framers of the Constitution, they were forced to consider whether that tradition trumps the separation of church and state. Or marriage: Presented last year with a modern interpretation of a male-female institution that Chief Justice John Roberts noted 'has been around since time immemorial,' the justices had a tough time justifying the exclusion of gays and lesbians. Now comes an epic balance-of-powers battle between the executive and legislative branches that only the judicial branch can resolve. On Monday, what's been billed as the marquee case of the high court's 2013 term will give the justices a chance to decide if George Washington and many of his successors violated the Constitution they swore to uphold."

Law professor Noah Feldman argues in a piece for Bloomberg that the U.S. Supreme Court's decision to strike down the federal Defense Against Marriage Act without declaring same-sex marriage a fundamental constitutional right has left the issue "a total friggin' mess." The result is the limbo in Utah in which a federal judge has declared that state's ban unconstitutional and same-sex nuptials have been proceeding until the Supreme Court stayed the ruling yesterday. Feldman said that the Windsor majority made a mistake by not going to the full marital goalpost. "Striving for gradualism, it gave us confusion," Feldman says. "Right now in Utah, some people are in a marriage limbo. They have married since the district court ruling, and now their unions are recognized by the federal government, too (one presumes) under Windsor. If the state ban is reinstated, what then? They will be unmarried (maybe) under Utah law. Will they be federally unmarried, too? It's not an abstract question, since they might not be able to get married in other states that recognize gay marriage since they aren't residents of those states. In short, we may be facing citizens who are married in no state but are married federally."

The U.S. Supreme Court halted same-sex marriages in Utah this morning while an appeal of a ruling that the state's ban on same-sex nuptials violates constitutional rights proceeds in the Tenth Circuit, NPR reports. A stay during an appeal was denied by lower courts. The justices' order was without comment or dissent.

The Wall Street Journal reports that more judges are speaking publicly beyond their opinions and court proceedings, including U.S. District Judge Richard G. Kopf of Nebraska starting a blog. "The old taboo seemed to take a hit this past year. Judges and legal experts point to several reasons judges may be speaking more freely now: A Supreme Court whose justices are frequently in the public eye, a desire among judges to defend themselves against political attacks and correct the record, and increased media interest in their work," The Journal further reports.

Bloomberg reports on the plans of Utah governmental officials to ask the U.S. Supreme Court to block same-sex marriages. A federal district court has ruled that Utah's ban on same-sex nuptials violates constitutional rights to equal protection and due process, but the Tenth Circuit ruled against holding the trial court in abeyance while Utah appeals the decision.

The National Law Journal's Marcia Coyle reports on the U.S. Supreme Court's spring 2014 term: "The term may seem a little blockbuster-light compared with back-to-back historic terms involving health care, immigration, same-sex marriages and voting rights. But there are a number of headline grabbers and the new year brings two possible game changers for the executive branch," including on the issue of whether the president has the power to make appointments during Congressional recesses.

Ohio Supreme Court Chief Justice Maureen O'Connor, writing in the Los Angeles Times, argues that the U.S. Supreme Court should follow the lead of the 9th Circuit and add live streaming of court proceedings: "When Justice David H. Souter uttered his now-infamous declaration in 1996 that cameras would roll into the Supreme Court over his dead body, the Internet was relatively new and Facebook, YouTube, Twitter and the iPhone were as real as Capt. Kirk's communicator. Today, there are few facets of daily life that are not available instantly online, including many criminal trials, which you can even watch on your mobile device at 30,000 feet. What this has done is create an expectation by the public that if something is truly important, it can be witnessed firsthand."

United Press International has this roundup of cases to watch when the U.S. Supreme Court reconvenes January 13: "The big dog in the rest of the Supreme Court term which ends when the justices 'rise; for the summer recess -- when the supreme backsides leave their comfortable rocking chairs behind the bench -- is the challenge to the Affordable Care Act's contraception mandate. The case demonstrates a Washington fact: The Supreme Court often influences how the average American lives as much or more than Congress or the White House. The justices agreed to settle the dispute over the Affordable Care Act's contraception mandate -- whether the health of women covered is dispositive, as the Obama administration argues, or whether the owners of for-profit businesses may use religious objections to avoid providing contraception insurance."

The Washington Post's Robert Barnes reports on oral arguments before the U.S. Supreme Court on where custody proceedings should be held in international custody disputes. While the case is the third the justices have heard about the Hague Convention on the Civil Aspects of International Child Abduction in four years, this current case involves an issue of first impression: "The Hague Convention says that if a motion is filed within 12 months of the abduction, the child must be returned to the country of origin. But after that, a judge may consider whether a child has become 'settled' in his or her new home, and whether it would not be in the child’s interest to be uprooted again for custody hearings. [Father Manuel Jose] Lozano couldn’t file the motion before the 12-month deadline because he didn’t know where his daughter was. He is asking the court to find that the 12-month period does not start until a parent locates the missing child."