Setting Up For Big Wednesday

Today should be the last day on the Supreme Court’s docket. There are only three cases left on the docket for the Court to decide. For once, I had a few moments to prepare for this, so below the fold, I’ve a single-paragraph brief of each case. Bonus: my predictions.

In Sekhar v. United States, an in-house counsel recommended against the Comptroller of the State of New York obligating New York’s Common Retirement Fund investing in two funds due to past involvement in shady but debatably legal activity by certain managers of the funds. Allegedly, a different manager of those funds then threatened to expose that the attorney who made the recommendation had been having an extramarital affair unless he reversed his earlier recommendation and instead tried to get the Fund to make the investments. The question is whether that piece of advice (“do not invest”) is “property” for purposes of a set of Federal laws criminalizing extortion. The Second Circuit below held that it did and that the defendant could be found guilty of extortion on these facts.

I’m predicting that the Second Circuit is affirmed here. Property can certainly be intangible but subject to extortion, and an attorney’s opinion is a thing of value for which people and companies pay (sometimes) big money. That the opinion was produced by in-house counsel on salary seems totally irrelevant to me. The only reason this case is coming so late on the Court’s calendar is that it was briefed and argued late this Term.

This case, while it’s actually an interesting question, may not be quite as sexy as the next two.

Hollingsworth v. Perry is about California’s Proposition 8, an initiative amendment to the state Constitution which banned same-sex marriage adopted only a few months after California’s Supreme Court issued an opinion finding that state law required same-sex marriages.

There’s two issues. First, do the backers of Proposition 8 have standing to challenge the law at all? California’s Governors and Attorneys General have declined to defend Proposition 8 against challenges that the law violates the Federal Constitution’s Equal Protections Clause (Fourteenth Amendment).

Second, if they do have standing, then the Court will also have to decide if indeed Proposition 8 does indeed violate the Equal Protections Clause, as the District Court and Ninth Circuit below both found.

I predict that the Court will find that the initiative’s backers have no standing. It’s the easiest way out because it avoids reaching the merits. If this happens, California will revert to approving same-sex marriage as it did briefly in 2008. The opinion will be carefully worded to leave unanswered the question of whether a right to same-sex marriage is found within the Fourteenth Amendment.

The biggest case is United States v. Windsor, the challenge to the Federal Defense of Marriage Act. Edith Windsor’s partner of over forty years and wife of two years (they married in Canada), Thea Spyer, died. Ms. Spyer was the insured under a substantial life insurance policy naming Ms. Windsor as the beneficiary. Life insurance benefits paid to a spouse are not taxable; benefits paid to someone other than a spouse are taxable. The IRS cited DOMA and demanded tax from Ms. Windsor on the benefits.

The Obama Administration declined to defend DOMA, so the Bipartisan Legal Advisory Group, a group of lawyers hired by the House of Representatives, has sought standing in the stead of the Justice Department to defend DOMA. As with Hollingsworth, the preliminary question is one of standing and after that, the merits of the law under the Equal Protections Clause (this time the Fifth Amendment rather than the Fourteenth) and the related question of jurisdiction in light of the government’s concession that Ms. Windsor ought not to have to pay the tax.

Both the District Court and the Second Circuit found that BLAG had standing and that Ms. Windsor had demonstrated that DOMA violates the Equal Protections Act. It’s hard to even imagine a more sympathetic plaintiff than Ms. Windsor. She’s a widow trying to get life insurance benefits after the loss of her beloved wife of forty years.

Something in my brain recalls that in other cases, legislative standing has been approved in situations where the executive has declined to defend a law. If that precedent is followed here as I think it will, that would force the Court to reach the merits. Given that, I predict that the Court will rule that whether Ms. Spyer and Ms. Windsor were actually married is a question of pure state law in which the Federal government has no direct interest. That would result in section 3 of DOMA being found unconstitutional — and thus that Ms. Windsor is absolved of tax liability the way any other spouse would be.

But we’ll see what happens tomorrow.