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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).

NBC's Pete Williams Says SCOTUS Not Ready to Issue 'Any Kind of Sweeping Ruling' on Gay Rights: VIDEO


NBC's Pete Williams, who was in the courtroom, tells Thomas Roberts that the Supreme Court is "not prepared to issue any kind of sweeping ruling about gay rights" and that it's likely they'll limit their ruling to California. He also notes that it's "risky" to make any kind of an assessment simply based on oral arguments.


Our legal expert Ari Ezra Waldman has posted his analysis of today's arguments. Read his take on their questioning of Prop 8 proponents HERE, and opponents (Ted Olson's argument) HERE.

And listen to the audio and read the transcripts of today's arguments HERE.

(via the new civil rights movement)

Continue reading "NBC's Pete Williams Says SCOTUS Not Ready to Issue 'Any Kind of Sweeping Ruling' on Gay Rights: VIDEO" »

Proposition 8 at the Supreme Court: Analysis of Today's Argument, Part 2


In Part II of Towleroad's summary and analysis of the Prop 8 oral argument, we pick up with Ted Olson's argument against Prop 8. Read Part One HERE.

And listen to audio and read the full transcript HERE.

OlsonHere's what we have discussed so far:

  • The justices are definitely interested in the standing question. The Chief Justice, though playing a gate-keeper role to make sure standing gets addressed, expressed skepticism. The key will be to see if he is playing the devil's advocate or expresses skepticism with Mr. Olson, too. But, in addition to the Chief Justice, Justice Ginsburg is highly skeptical. If we see more evidence of this below, look for lack of standing to be the odds-on favorite of many pundits. But, remember, there were lots of other questions on the merits from all the justices. That does not mean that they are going to pass by standing. Nor does it preclude a 9-0 opinion saying the Proponents had no standing.

  • Mr. Cooper was forced to admit that the only injury caused by allowing gays to marry would be redefining marriage, which is clearly not an injury whatsoever. He also admitted that gays simply do not advance the government's interest in encouraging natural procreation within wedlock (even though he's wrong about that), which proves that a ban on gays marrying cannot actually advance that interest, either. If it weren't for some help from Justice Scalia, this case would be over on this point alone.

  • Justice Kennedy showed that he, like many, are struggling with this issue. The addition of this relatively emotional admission (emotional, at least, by Supreme Court argument standards) is telling of his honesty and the reality that many people are going through right now. This may suggest that Justice Kennedy is going through his process, perhaps with a little help from everyone else along the way.

We pick up with Ted Olson's argument and see what lessons we can draw,

Continue reading "Proposition 8 at the Supreme Court: Analysis of Today's Argument, Part 2" »

Proposition 8 at the Supreme Court: Analysis of Today's Argument, Part 1


SupremesAs the plaintiffs, attorneys, and assorted celebrities filed into the grandiose Supreme Court building at One First Street, you could get the feeling -- even from afar -- that something special was happening today. Paul Katami and Jeff Zarrillo walked in holding hands, as did Kris Perry and Sandy Stier. Ted Olson looked prepared and at ease, exactly what you would expect from a man who has argued more cases in front of the Supreme Court than he probably cares to count. In short, the day was momentous. Would the argument be, as well?

In a word, yes. I will let the prognosticators prognosticate, but what I would like to offer you is a legal perspective. The argument exceeded my expectations in terms of the questions the justices posed to counsel on both sides and what those questions might say about the justices' concerns. But, let's be clear: While the media have already taken to Twitter and their own websites to predict that this or that question from Justice Kennedy means that he will make this or that decision, those predictions often fall far south of meaningful. Any lawyer who has argued before a "hot bench" -- namely, active questioners -- knows that sometimes, especially in politically charged environments, judges of all stripes challenge both sides. In fact, a study of decades of Supreme Court arguments based on the number of hostile questions a given justice asked a given party showed no statistically significant correlation with that justice's ultimate decision in the case (notably, there was a statistically significant relationship found between softball questions and a favorable decision).

The actual hearing can tell us a few things, like what is on the justices' minds. Was Justice Kennedy mostly concerned about standing, or was he asking a lot of questions about equal protection? If a justice only asks about one issue, that's the one he or she is focused on. Did the Chief Justice ignore the scrutiny question and focus on how the case is really only about the word "marriage"? If so, that might only mean that he has no questions on standing, that he already made up his mind, and not necessarily that he thinks the Prop 8 proponents actually had standing. 

With that in mind, follow me AFTER THE JUMP for the first of two posts offering a chronological summary and analysis of some of the more important highlights of the argument. When we all have had time to sit back and reflect, we will post a thematic analysis around the substantive questions in this case: standing, scrutiny, and equal protection.


Continue reading "Proposition 8 at the Supreme Court: Analysis of Today's Argument, Part 1" »

Attys Ted Olson, David Boies, and Prop. 8 Plaintiffs Speak After Today's Supreme Court Arguments: VIDEO


Attorneys Ted Olson and David Boies and the Prop. 8 plaintiffs Sandy Stier, Kris Perry, Jeff Zarrillo and Paul Katami spoke at a press conference following arguments before the Supreme Court.

Watch it, AFTER THE JUMP...

Continue reading "Attys Ted Olson, David Boies, and Prop. 8 Plaintiffs Speak After Today's Supreme Court Arguments: VIDEO" »

SCOTUSblog's Initial Analysis: Court Won't Uphold or Strike Down Prop. 8 and It Will Remain invalid

SCOTUSblog's Tom Goldstein writes that the Justices seriously doubt that the petitioners have "standing" (Ari talked about that in his preview HERE):

KennedyThese likely include not only more liberal members but also the Chief Justice.  If standing is lacking, the Court would vacate the Ninth Circuit’s decision.

Goldstein says the Court seemed divided on the constitutionality of Prop 8 along ideological lines with Kennedy as the swinger and it is unclear how broadly the left side of the Court will rule.

Kennedy (pictured), as the swing vote, was cautious:

He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new.  He also noted the doubts about the petitioners’ standing.  So his suggestion was that the case should be dismissed.

Goldstein concludes:

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.  Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it.

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.

We'll have analysis from our legal editor Ari Ezra Waldman as soon as possible after the transcripts are released within the next hour or so. Please stay tuned here and make sure not to miss a Towleroad headline by following @TLRD on Twitter.


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