October 25, 2012
By Scottie Thomaston
We have been paying close attention to the DOMA and Prop 8 cases at the Supreme Court, as well as Arizona’s domestic partner benefits case. Some of the cases were ready for a conference on September 24, where the Court would decide whether to take any of them up for briefing, argument, and full review this term. As we’ve written, the cases were held and nothing was decided at that conference or in the weeks after.
The responses to the various petitions that were due have been filed with the Supreme Court. Parties can reply to these responses, but they are not required to do so. It seems pretty likely that we can expect replies, though.
The next conference is Friday, October 26. It is unlikely that the Court would deal with DOMA or Prop 8 at Friday’s conference (and indeed SCOTUSBlog’s ‘Petitions to Watch’ for the conference don’t list those cases.)
The Court created its list for the October 26 conference on October 3. It was completed on October 10; this is the list for the types of cases that would include the ones we are watching. None of the cases we are paying attention to are on the new list.
There is a conference November 2 but it seems unlikely the Court would take a look at these cases at that one.
It is more possible that the cases might be taken up at the November 9 conference. The list of cases for that conference was started yesterday.
After that is the November 20 conference. The list for that conference will be created beginning October 29 and completed November 5. Given recent developments – and the fact that November 20 is after the election, among other reasons – it seems most plausible the Court would decide which of these cases to take up at the late November conference. This would mean we could learn which cases the Court will hear the next day (Wednesday the 21st) or the following Monday, the 26th.
Given that Windsor is one of the cases in front of the Court and it reached them through petitions for certiorari before judgment at the appeals court, and there is now a judgment at the appeals court (along with promises by the Justice Department and the Bipartisan Legal Advisory Group (BLAG) to take further action in light of the Second Circuit decision) it’s unclear if there would be any sort of delay in terms of any new filings in the case. But if the cases aren’t taken up until November 20, that could allow enough time to pass anyway.
Whichever cases the Court takes up, it is expected that oral argument would be in February or March, and a decision on the constitutionality of Section 3 of DOMA (as well as, possibly, Prop 8 ) would be issued in June 2013. If the Court denies the Prop 8 petition, after some legal housekeeping is completed at the Ninth Circuit, Prop 8 would be eliminated.
h/t Kathleen for some of this information