Antonin Scalia | Federal Prop 8 Trial | Gay Marriage | News | Proposition 8 | Supreme Court

Supreme Court Shuffle: Did Conservatives Grant the Prop 8 Case?

Adam Liptak at the NYT finds the "aha moment" in the Supreme Court's Prop. 8 transcript signaling who likely voted to take up the case, and proposes a theory about why it was taken and the exit points that may shuffle it back to California where the ruling striking it down would stand.

A_scaliaWrites Liptak:

After Justice Anthony M. Kennedy suggested that the court should dismiss the case, Justice Antonin Scalia tipped his hand.

“It’s too late for that now, isn’t it?” he said, a note of glee in his voice.

“We have crossed that river,” he said.

That was a signal that it was a conservative grant.

And how did that happen?

Justice Scalia, almost certainly joined by Justices Clarence Thomas and Samuel A. Alito Jr., apparently made a twofold calculation: that their odds of winning would not improve as same-sex marriage grows more popular and more commonplace, and that Justice Kennedy, who is likely to write the decision in the case concerning the 1996 law, would lock himself into rhetoric and logic that would compel him to vote for a constitutional right to same-sex marriage in a later case.

It is not that the conservatives felt certain they would win. It is that their chances would not improve in the years ahead.

That leaves the question of the fourth vote. The most likely answer is that it was that of Chief Justice John G. Roberts Jr., though he did not sound at all pleased on Tuesday to have the case before him.

There is also a chance that the fourth vote came from Justice Kennedy himself, and his very questioning provides support for that theory.

“I just wonder,” he said, sounding a little plaintive and a little angry, “if the case was properly granted.”

Who Wanted to Take the Case on Gay Marriage? Ask Scalia [nyt]

If you missed Ari Ezra Waldman's Prop 8 analysis from earlier in the week you can find it HERE (Part 1) and HERE (Part 2).

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  1. Scalia should be called out for the bully that he is.

    Keep digging Scalia as you will be "Borked" for the rest of your life.

    Posted by: AllBeefPatty | Mar 30, 2013 8:41:25 AM

  2. The sad thing is - Scalia is not going anywhere any time soon. He will sit on that court until he draws his last breath. And I am betting that he still has enough bile and evil inside of him to sustain him for years to come...

    Posted by: Steve | Mar 30, 2013 8:46:57 AM

  3. Anyone with a brain recognizes Scalia for what he is. Cheney also lost all respect, and he was once remotely decent. No one credible has ever thought that of Scalia. Like Cheney he's bright but evil, which isn't the greatest mix.

    Though I get tired of Kennedy too. He loves being the trump card on votes a bit too much, and it often seems staged. The setup of the court is a bit of a mess, with nearly all the votes predictable. Roberts has been the only surprise, thankfully.

    Posted by: Paul R | Mar 30, 2013 9:16:56 AM

  4. This I don't understand:

    "Justice Kennedy, who is likely to write the decision in the case concerning the 1996 law, would lock himself into rhetoric and logic that would compel him to vote for a constitutional right to same-sex marriage in a later case."

    Why would the conservative justices want that?

    Posted by: rustytrawler | Mar 30, 2013 9:16:57 AM

  5. When the right wing Supreme Court justices during Franklin Roosevelt's administration realized how despised they were by their fellow Americans, they had the good judgment to resign. It is past time for the conservaturds in this court to do the same.

    Posted by: candideinnc | Mar 30, 2013 9:28:00 AM

  6. But they won't resign. You'll have to rip those robes from their cold dead asses.

    Posted by: David Ehrenstein | Mar 30, 2013 9:40:18 AM

  7. Yes, no matter how despised Scalia perceives he is, he will still cling to the last vestiges of what makes him powerful.....without that he is just another right wing mouth.

    It is a matter of absolute importance - vital-essential-.....that the next President be liberal to turn the composition of the court should that opportunity arise.
    If a liberal Justice like Ginsberg wants to retire she must be replaced by a young liberal Justice who will lock up the court on the liberal side for a generation.
    We cannot imagine the damage that a court with a few more Thomas's or Scalia's or Alito's could do. And can you imagine a Bork present on this court now ?

    I listened to all the arguments on the two recent cases, I never once heard Thomas say a word or ask one question.
    He should be called in and fired for neglect of duty......obviously he has no self respect whatever.
    The Prop 8 case should be dismissed as improvidently granted and the prop 8 remain struck down in California.
    But for me the really decisive issue is the next Presidential election; Hillary must run; Hillary must win.

    Posted by: JackFknTwist | Mar 30, 2013 10:02:13 AM

  8. Thomas has spoken once in the past many years. He's a huge disgrace, and after the way that he shamed Anita Hill, who had no reason to lie, should never have been confirmed. Duh. He's hardly a judicial scholar. I'm not even sure why he shows up.

    Posted by: Paul R | Mar 30, 2013 10:29:40 AM

  9. On a side note, I see that the current Chief Justice, Roberts, has dispensed with the four gold stripes on his robe's sleeves........a la "Yeoman of the Guard" or "Trial by Jury".

    I make this point as an illustration of how some of these men, (yes, it's the men,) love the show of pomp and power.
    Scalia retire ? Never.

    Posted by: JackFknTwist | Mar 30, 2013 10:31:27 AM

  10. There's something amiss about the logic in the new York Times article.
    How does the fact the Kennedy may write the 1996 DOMA decision tie him into rhetoric which will compel him to vote for same sex marriage, and how/why does that make Scalia happy ?

    Posted by: JackFknTwist | Mar 30, 2013 10:37:46 AM

  11. Mr. Scalia is wrong about it being too late to dismiss the case. Too late not to hear the arguments, yes. But the SCOTUS could decide to allow the Appeals / District court rulings to stand, overturning Prop 8 in California only. I certainly do not expect a broad ruling that would apply nationwide. I actually think both Roberts and Kennedy are swing votes in the Prop 8 case, although for different reasons.

    Posted by: jpeckjr | Mar 30, 2013 10:54:30 AM

  12. @Rusty and Jack: " a later case..."

    The conservative justices were afraid that if they did not take up the Prop 8 case NOW, that Kennedy would find for the constitutionality of marriage equality in another case that would lock him into voting to strike down Prop 8 later. That is, the conservatives thought that this (Hollingsworth) was their last best chance to grab Kennedy's vote before greater acceptance of same-sex marriage makes it easier for him to find for a constitutional right to marriage equality.

    The article is a little bit oddly worded, but I'm pretty sure this is what Liptak was saying.

    Posted by: Interpreter | Mar 30, 2013 11:27:15 AM

  13. What a SCOTUS judge lie. LMAO, all you have to do is look at the 2000 Presidential Election. Too bad we can't recall or fire the jacka$$.

    Posted by: KsBrian | Mar 30, 2013 11:34:26 AM

  14. Scalia? The real joke on the bench is Thomas.

    At least every other justice asked questions to find the answers they were looking for even if Scalia had to hand feed those answers even going as far to say "don't you mean to say this or that?"

    Posted by: Michael | Mar 30, 2013 11:38:51 AM

  15. No matter the outcome of any case, Kennedy is likely to be the moderate and will probably write the majority decision, whether it's a liberal majority (based on the 14th) or a conservative majority (based on federalism).

    The bit about the calculation made by Scalia and Alito on Kennedy is that AS TIME GOES BY the likelihood of a decision on DOMA focusing on the merits will only increase. In other words, better to act now when the decision Kennedy writes will be about federalism, not equal rights.

    Posted by: BobN | Mar 30, 2013 1:19:06 PM

  16. Liptak is just filling space with speculation. Scalia's comment could just as easily be understood to say: "We're here now. Don't blame me...this isn't my doing but here we are." The "glee in his voice" was his nailing an attorney who was trying to avoid answering his question. It was not at all clear that he was referencing Kennedy's earlier remark.

    No news worth writing about so everybody gets to blather.

    Posted by: Chuckles | Mar 30, 2013 1:51:46 PM

  17. "Scalia? The real joke on the bench is Thomas."

    Yes. But that's fairly common knowledge - Scalia's prejudices have compromised an otherwise first-rate intellectual. Thomas was never that intelligent to begin with (at least for a justice of SCOTUS).

    Posted by: Nat | Mar 30, 2013 1:59:22 PM

  18. Agree with several others here. The conservatives took the case so they could kick the can down the road.
    Gay marriage will be coming but by golly,they'll delay it as long as possible.
    My bf and I have a bottle of wine we're saving.
    When Scalia's awful racist,bigoted heart gives out,we will open that and cheers.

    Posted by: Kevin | Mar 30, 2013 2:08:56 PM

  19. So the rumpy minion of the Vatican said to himself "better destroy gay marriage while I still have the chance"? No surprise there. Anyhow I give him another 5 years - he looks like he eats about 15 full-sized Panettone every Christmas. Then we will no longer have to worry about his "strategery" and whoever Hillary appoints to replace him can start fixing whatever damage remains of his tenure.

    Posted by: EchtKultig | Mar 30, 2013 2:39:14 PM

  20. .I have a hard time believing Kennedy would grant cert then rue the decision. g significant has changed between December and now. I don't think he'll vote to DIG as that would be considered bad form.

    Posted by: Bruno | Mar 30, 2013 2:47:19 PM

  21. It is clear from oral arguments that Kennedy did not want to take this case and will vote to decide these cases on the narrowest grounds possible that will not create a nationwide right to same-sex marriage. He really seems ticked off that he is having to even address this issue now with only nine states having samesex marriage.

    Posted by: Jake | Mar 30, 2013 2:52:03 PM

  22. It is clear from oral arguments that Kennedy did not want to take this case and will vote to decide these cases on the narrowest grounds possible that will not create a nationwide right to same-sex marriage. He really seems ticked off that he is having to even address this issue now with only nine states having samesex marriage.

    Posted by: Jake | Mar 30, 2013 2:52:04 PM

  23. Of course conservatives voted to proceed, as that was the only way to overrule the ninth circuit decision. What they couldn't count on was a five vote majority.

    Posted by: anon | Mar 30, 2013 4:52:35 PM

  24. I was surprised when the court agreed to take the Prop 8 case. I was hoping it was because the liberal judges thought the votes were there for a landmark ruling establishing marriage equality nationwide. After last week's testimony and reading this article, that clearly is not the case. I think the best we can hope for now is some narrow decision that will restore marriage equality to California.

    Posted by: Ken | Mar 30, 2013 6:55:37 PM

  25. I am wondering if Antonin Scalia and the other corrupt "justices" decided to take Prop 8 specifically so that they could sabotage the decision of the 9th Circuit Court of Appeals.

    It is my understanding -- or perhaps complete misunderstanding -- that if the Supreme Court declined to take the case, then the decision of the 9th Circuit is binding for ALL the states that circuit covers (and is influential for the rest of the country), whereas if the Supremes decide to punt, then that decision is vacated and marriage equality is limited to California and Judge Walker's decision.

    I hope I'm wrong, but the corrupt four have more than amply shown themselves to be sociopaths whenever possible.

    Posted by: EdA | Mar 30, 2013 7:41:10 PM

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