Tuesday, March 26, 2013

First responses after oral arguments

Today the Supreme Court heard oral arguments on the legitimacy of CA proposition 8, which in 2008 rescinded the right of same sex couples to marry in the Golden State, while leaving all the benefits of marriage intact. Veteran SCOTUS watcher and SCOTUSblog writer Tom Goldstein think they will decided not to decide:
The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.... 
The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule. 
But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now...So his suggestion was that the case should be dismissed. 
If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8. ... 
Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision. 
The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one. 


JCF said...

In light of today's events, I can't understand why SCOTUS took Prop8 in the first place? O_o [I thought it was somewhat ominous at the time (they decided to take the case), because I don't think anybody thought SCOTUS was ready to declare marriage bans dead in all 50 States].

Well, if we (Californians like you and me, IT) get SSM back in the Golden State, that will still be HUGE.

...and onto (overturning) DOMA!

IT said...

It only takes 4 justices to grant cert, One commentator thinks that the conservatives thought they would be able to uphold Prop8. If they do punt it, it probably just puts it back in the courts, for a variety of complicated and ridiculous reasons. We should just repeal the damn thing.

JCF said...

SRSLY?! EVERY analysis I've heard today says "If SCOTUS denies standing, SSM resumes in California": you're saying that's not the case???

dr.primrose said...

My going-out-on-a-limb predictions. I think several of the liberal justices are concerned about ruling on the Prop. 8 case on the merits because they don't want to the court to be too far ahead of public opinion (like several of them, even Ginsburg, think they might have been on Roe v. Wade). But they don't want Scalia's views to win, either.

I don't think they'll punt the case on standing grounds. The California courts have already ruled under state law that the Prop. 8 proponents have standing. Federal law on standing is stricter. But several of the justices are concerned that somebody ought to be able to test laws if the state goverment won't defend something like Prop. 8. And it's a bit difficult to resolve this case on the confusing ground (at least to the general public) that the Prop. 8 proponents don't have federal standing even though they do have state standing.

The other problem with the standing issue is that, if the Prop. 8 proponents dont' have federal standing to take the case the Supreme Court, they didn't have federal standing to appeal to the Ninth Circuit, either. So the Ninth Circuit opinion falls. So that leaves the district court judgment intact. But the Prop. 8 proponents have already publicly stated that they will take the position that the district court decision applies only to the named plaintiffs and they will try to make any other same-sex couples go to court to individually litigate the right to marry. (I'm not quite sure procedurally how they would do that. But they will probaby try.) I don't think the Supreme Court liberals want that result.

So I think there's a reasonably good possibility that the four liberals and Kennedy could issue a short order stating that that cert. was "improvidently granted," which is the normal language used. As IT said, it takes only four to grant cert. But the other five have the ultimate power to get rid of the case on that ground. That would leave the Ninth Circuit opinion intact, which would, I think, preserve the right for all same-sex couples in California to marry. A limited victory, perhaps, but a big victory nonetheless.

The DOMA case in much more straightforward procedurally. So they will probaby decide that one on the merits, though I predict they will limit the decision to whether the feds have to recognize state marriages and not deal with the issue of whether, say, Utah has to recognize Massachusetts same-sex marriages.