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Oral Arguments for the Week of April 27: What to Watch For

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By Mark Wilson, Esq. on April 27, 2015 11:01 AM

This week is The Big One. On Tuesday, the Supreme Court will hear oral arguments in Obergefell v. Hodges, the caption that will be forever attached to the definitive (we hope) same-sex marriage cases.

That's not all that's happening, though. Though it will devote a full day (two hours) of arguments to the four same-sex marriage cases from the Sixth Circuit, it will also hear a case about lethal injection on Wednesday. Here's what you should keep an eye out for this week.

Obergefell v. Hodges (Tuesday, April 28)

The justices tried to punt on same-sex marriage earlier this year, but once the Sixth Circuit handed down its cases, the Court had no choice but to resolve the split between that circuit and the recent decisions from the Tenth, Fourth, and Seventh, which all struck same-sex marriage bans.

In their typical fashion, look for ways in which the Court might be able to please everyone. At this point, with same-sex marriage legal in 37 states and Washington, D.C., the justices would be hard-pressed to unilaterally wipe that all out. On the other hand, it might be hard to get five justices to sign onto an opinion mandating same-sex marriage everywhere. Everyone will be on the lookout for Justice Anthony Kennedy, who's authored all three of Court's opinions recognizing civil rights for gays and lesbians (Romer v. Evans, Lawrence v. Texas, and U.S. v. Windsor).

The justices might also try to create problems just so they can claim there are problems. For example, what level of scrutiny should the Court assign laws burdening sexual orientation? And while it's probably not in the briefing, the justices do read the newspapers, so they know about the RFRAs in states like Alabama and Indiana. They may also play a part in understanding the constitutional implications of state laws banning same-sex marriage. (In other words, Gov. Bobby Jindal's New York Times op-ed last week wasn't a coincidence.)

Glossip v. Gross (Wednesday, April 29)

In Glossip v. Gross, scheduled for Wednesday, the justices will decide whether a particular three-drug cocktail used for lethal injection is constitutionally permissible. In 2008, the Court sanctioned the use of one set of drugs for lethal injections, but after drug companies at home and abroad refused to make the drugs available for executions, several states had to come up with an alternative. This they found, but with sometimes disastrous results.

Don't expect the Court to throw out the death penalty altogether. The Questions Presented are narrowly tailored to address the Glossip situation: Namely, whether a drug cocktail that's not the same one as in 2008's Baze v. Rees violates the Eighth Amendment. Recent news may also pop up in this argument, as some states -- apparently concerned about the constitutionality of lethal injection -- have gone so far as to reauthorize the firing squad as a method of execution.

There's also an immigration case and an excessive force case scheduled for next week, but let's be honest: You're tuning in for the same sex marriage and the lethal injection.

So are we.

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