Family Matters

Trojan Parents enjoy discussion of U.S. Supreme Court

Story and Photos By Maria Iacobo

Each fall, USC’s Trojan Family Weekend showcases some of the university’s extraordinary faculty at events held throughout the campus. This year, USC Gould offered parents an engaging discussion of the U.S. Supreme Court with professors who have served as clerks for the highest court in the land. Professors Rebecca Brown and Sam Erman reviewed several cases before the Court, discussed ramifications of recent landmark decisions and offered insight as to how cases are selected.

Erman opened the discussion with the unusual case of a suburban housewife, Carol Bond, who was charged under a federal anti-terror law when her only target was her husband’s mistress.

“Bond’s attorney claimed that the statute didn’t apply to her, [indicating that she] was engaged in private revenge, not chemical warfare,” Erman said, to the amusement of the audience. “Congress enacted a very broad law to implement this treaty. But having fully implemented the treaty, you might have thought they’d exercise discretion on when to charge people, and it seems like this prosecutor overreached. Trying to poison someone for revenge may not seem peaceful, but it’s not warlike.”

Brown, a nationally recognized constitutional law theorist, discussed the legal complications that have ensued from decisions rendered during the Court’s previous Term. Last June, the Supreme Court overturned the federal Defense of Marriage Act (DOMA) and allowed same-sex marriage to continue in California by deciding that supporters of Proposition 8 did not have the legal right to defend the law in court. Professor Brown discussed how these two decisions have “created legal quandaries” for many states.

Brown explained that since the court did not endorse the fundamental right of gay people to marry, the decision has been left to the states for the time being.

“The problem is that the status of marriage affects so many of the rights, responsibilities and aspects of our lives that matter in terms of everything we do every day, including raising our children, owning property and making very personal rights such as determining medical care and treatment for a spouse,” said Brown. “The justices made very clear they’re uncomfortable with recognizing a national rule requiring states to allow same-sex marriage.”

Brown identified a number of cases where same-sex couples who were legally married in one state lose certain rights when they move to a state where same-sex marriage is not recognized.

“There are literally dozens of cases in litigation starting from last June in which same-sex couples who were married in one state are confronted with very difficult problems in their lives” due to the fact that another state does not recognize their marriage, Brown said.

One example: a couple who had married and adopted two children in one jurisdiction moved to Kentucky, only to find that their marriage was not recognized as a legal union. Another Kentucky state law says that children who are adopted may not have more than one parent recognized as a legal guardian unless the parents are legally married.

“Think about that,” Brown said. “You move there as a family of four and suddenly you don’t know what you are. Who signs the medical authorizations for these children? [This couple is] arguing that Kentucky has a constitutional obligation to recognize the fact that they are married.”

Brown and Erman also provided some insights about the process by which the justices decide whether to hear a case. Each professor clerked for justices: Brown clerked for Justice Thurgood Marshall and Erman for Justices John Paul Stevens and Anthony Kennedy.

“There is nothing more fun for former clerks [than] to try to guess what’s going on,” said Erman. “It’s an incredible thrill getting to have watched things unfold from inside the Court.  Afterward, it’s tempting to try and recapture that experience by recalling how decisions get made.”

The court is “inundated with petitions,” Erman explained. Law clerks conduct the first round of reviews to decide which cases merit a closer look. Petitions are discarded because, among other reasons, they’re not interesting or do not raise important issues.

Erman also outlined some of the criteria for determining whether a case moves forward. These include: two lower courts have disagreed on an issue; a case falls into an area of expertise or interest of one of the justices; or if a case is “important,” such as Bush v. Gore and the 2000 presidential election.

“Another concern that I find interesting is the Court, when it can, likes to issue clear guidance,” Erman said. “The Court would like to avoid the situation where it can’t reach a decision in a case or where the nine justices each write their own opinion and you can’t figure out what the law is because they’re all going in different directions. This does happen.  But, I will add that the Justices are confident people. They generally believe in their ability to solve things.”