SCOTUSBLOG, Reuters: ‘Prop 8 Unlikely to Be Upheld’, ‘Roberts Raises Doubts About California Case’


News outlets are starting to tweet from inside the courtroom. Important to note that these are not definitive decisions but items for attorneys to consider, impressions, statements, etc…

We'll have analysis from our legal expert Ari Ezra Waldman as soon as possible after 1 pm when the transcripts are released….

The Guardian's live blog is very informative – play-by-play…

Writes the Guardian: "As usual, Kennedy is the one all eyes are focused on as the likely 'swing vote.' Kennedy, however, knows this, and he likes to throw up a cloud of smoke to distract pundits. Recall that in the health care reform case, everyone expected Kennedy to be the pivotal fence-sitter, when ultimately it was Justice Roberts who voted to uphold while Kennedy wrote the vicious dissent representing those who wanted to throw out the entire law."

And here's the Wall Street Journal's live blog on the hearings

Reuters breaking:

Tweet: "Developing: Roberts says California #prop8 case may not reach central issue of right to marry for gays…"

Tweet: "U.S. Chief Justice Roberts, midway into gay marriage arguments, raises doubts about California case"

Tweet: "Supreme Court Justice Kennedy: California gay marriage ban may hurt rights of gay couples children"


Tweet: "Breaking: 1st update- #prop8 unlikely to be upheld; either struck down or #scotus won’t decide case."

Tweet: "Breaking: key vote Kennedy VERY uncomfortable striking down #prop8. Suggests dismissing case. Would leave in place 9th Cir pro-#ssm ruling."

Tweet: "There are not 5 votes to strike down #prop8 and recognize equal right to #ssm at this time"

Tweet: "Arguments done. #scotus won’t uphold or strike down #prop8 bc Kennedy thinks it is too soon to rule on #ssm. #prop8 will stay invalidated."


Tweet: "Scalia: "considerable disagreement" about the "consequences" of same-sex couples raising children."

Tweet: "Scalia: "I take no position on whether it's harmful or not, but it's certainly true there is no answer to that scientific question…"

REUTER reporter David Ingram:

Tweet: "Cooper said the high court should defer on the standing question to the California Supreme Court's findings."

Tweet: "Charles Cooper was interrupted during his first sentence or two of the argument. Roberts suggested he begin with standing, not the merits."

Washington Blade's Chris Johnson:

Tweet: "Lots of questions about standing. Sotomayor said it seems "counterintuitive" for state to delegate standing to those who support measure."

Tweet: "Kagan asks whether constitutional to ban 55 years from marrying. Cooper says no because 1/2 of such couples can usually still procreate."

Tweet: "Scalia: If you legalize #marriageequality , have to legalize gay adoption and "considerable disagreements" on whether that's harmful to child"

Buzzfeed's Chris Geidner:

Tweet: "First #SCOTUS take: Very significant questions about whether the proponents had standing to bring the #Prop8 appeal at all."

"Second #SCOTUS take: Justices also were very skeptical of the "nine-state solution" advanced by the Obama administration."

Developing refresh for updates…


  1. anonymous says

    “Scalia: “I take no position on whether it’s harmful or not, but it’s certainly true there is no answer to that scientific question…”

    What the hell is Scalia talking about? All he has to do is read the transcript from the Prop 8 trial and he will see CLEARLY that all the scientific evidence is on the side of equality. The Pro H8 side didn’t provide any scientific evidence that was accepted as accurate by the court.

  2. Terry says

    I wish they would stop speculating just because of comments being made by the justices. How can anyone tell that they’re aren’t 5 votes there to over turn Prop8? , on the upside if they dismiss the case California will be able to immediately resume same sex marriages… its kinda like the Court’s version of the pocket veto.

  3. Steven H says

    @AJ June

    Sometimes you can figure out how a matter will be decided based on the justice’s questions in the oral argument.

    From what I can gather, both Kennedy and Roberts were very critical of Prop 8, but Kennedy would rather just rule on standing.

    That would suggest that Prop 8 will definitely not be upheld, but it will simply be set aside. Marriage equality will return to California.

  4. Jorge says

    Reporters can’t tweet from inside the SCOTUS courtroom.

    They have to exit the courtroom and miss part of the argument and go to the attorney’s lounge, or leave the building completely.

    Just FYI.

  5. Thomas says

    Actually, these tweets are pretty informative, particularly those with direct quotes from the Justices. Those who are reporting on the arguments have watched many, many cases heard by the Justices.

    It was never very likely that a broad ruling would be issued (I could even see the Court being unanimously against that position). The most likely outcome that would be favorable to us would be for the Court to decide the defendants had no standing. Yes, it leaves our rights to a vote. But increasingly it’s become clear that path will lead to victory in many, many states over time.

  6. Jake says

    How quickly people forget? Remember all the people making conclusions about outcome based on the oral arguments over Obamacare? How did that work out for ya?

  7. CGD says

    Don’t see this happening this year. SCOTUS hasn’t been at the forefront of public opinion. Maybe in 3-5 years. Hope I’m incorrect.

    I’ve so many oars in the waters.

  8. Jack says

    The only thing these tweets are useful for is reading what the Justices are asking. They provide zero insight into how they will rule on the case. Judges often ask contradictory and seemingly misleading questions (with respect to how their vote comes down in the end).

    There is no basis on which to celebrate or comisserate from these tweets.

  9. Steven H says

    Whether or not we can normally determine how a justice will vote based on his/her questions, some of the new info coming out would seem to suggest that the justices were all over the place with their questions.

    Idk, we’ll see what happens in June.

  10. jpeckjr says

    Justice Scalia, have you reviewed the scientific evidence that was considered before the first opposite gender couple was allowed to marry, the scientific evidence that showed their children would turn out okay? See, in Judeo-Christian mythology, that first couple, Adam and Eve, well, one of their sons murdered one of their other sons, so I’m just not so sure the scientific evidence about them being good parents was all that reliable.

  11. Jack M says

    Either way, the Court’s decision will not be one so as to put them in the line of fire from either side. They will make a nuanced decision that leaves them out of the equation.

  12. Jeff says

    I find these justices comments rather interesting, and pointing in the correct direction. It’s like the curtain being slowly pulled back on the wizard of oz, those who are against ssm are being surely exposed as having no standing.

    Yep, it’s right there in black and white.

    The transcripts are going to be good, this is just the previews. I can’t wait!

  13. disgusted american says

    sounds like SCOTUS will be COWARDS – and Punt this down the road..for…(____yrs)? Meanwhile Our Neighbors to the NORTH – the REAL COUNTRY of LIBERTY & JUSTICE for ALL allows ALL its citizens FULL EQAULITY in Canadian Life…..! YOU SUCK AMERICA……America is a LIE!

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