Trust-worthy court-watchers seem to agree, the Supreme Court, based on the Justices questions and comments Tuesday morning, seems highly unlikely to use the challenge to California’s Prop. 8 to find a constitutional right to same-sex marriage. The hearings indicated that the court may be poised to find a lack of standing for the groups defending Prop. 8, which would (let’s at least hope) leave in place a lower court ruling overturning it, which would (likely) restore same-sex marriage in the Golden state, but not in any other states.
Illya Shapiro at Cato at Liberty:
we’re left with [the] two most likely scenarios: (1) the “liberal” justices potentially joining Chief Justice Roberts on a ruling that the petitioners lack standing, which would probably vacate the Ninth Circuit ruling but leave the district court’s ruling against Prop 8 in place; or (2) no majority because Justice Kennedy (and perhaps others) would prefer to dismiss the case as improvidently granted (a “DIG” in insider terms), which would leave the Ninth Circuit’s ruling in place – so Prop 8 would also remain struck down, albeit on narrower grounds than in the first scenario.
Tom Goldstein at Scotusblog:
“Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure. These 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.” …
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 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.
At this point, it looks like the grand hopes of a sweeping ruling granting marriage equality throughout the United States is not to be. Next up on Wednesday, the Defense of Marriage Act.
More. From the Cato Institute’s Roger Pilon, The Journal led astray by same-sex marriage, taking issue with the Wall Street Journal‘s editorial urging the Supreme Court to uphold DOMA:
It is troubling that the same-sex marriage issue has led the Journal to subscribe to the mistaken jurisprudence that it so often rightly and powerfully condemns in those other areas, as when economic liberties are in the government’s crosshairs. Liberty is of a piece. The simple presumption of our Constitution is liberty, with government authorized and empowered to protect it, and obligated to offer compelling reasons for restricting it when that should be necessary. In recognizing rights, the Court is not “creating” them. It’s simply acknowledging that they were always there, even if we haven’t always lived up to our principles and recognized them, as clearly we have not. That’s not judicial activism. It’s simply the Court engaged in making explicit what was always implicit, even if we haven’t seen the matter clearly until now.
Furthermore. Walter Olson writes at the New York Daily News, in The high court’s marriage jitters, that “signs point to a cautious ruling.”
Jonathan Rauch seems to concur, as does Dale Carpenter, in the post above.
One Comment for “Day One: Prop 8 at the Supreme Court”
posted by Tom Scharbach on
At this point, it looks like the grand hopes of a sweeping ruling granting marriage equality throughout the United States is not to be.
Yeah, well, that it isn’t a change from yesterday. You can count the number of serious scholars who thought the Court would be likely to reach a 50-state decision on, well, no fingers. I suppose that there might have been an outlier or two, but I haven’t found them.
What struck me, after reading the transcript twice now, is that the Solicitor General’s “everything but marriage” position is also DOA, and I do mean DOA. Justices Ginsburg, Breyer, Sotomayer and Chief Justice Roberts questioned the Solicitor General sharply, and none of the questions suggested that any of them found any merit in a 9-state decision.
Scalia and Alito (with Thomas, most likely) seem to want to use the case to reverse the 9th Circuit and find no constitutional right to marriage equality, but that is equally DOA, because none of the other Justices gave any hint at all that they would be willing to head in that direction.
So it looks like the Court is setting itself up for a decision to abrogate Prop 8 without deciding the marriage equality issues.
What I’ve been reading is that the Court, has three options:
(1) affirm the 9th Circuit (the 9th Circuit expressly did not consider the marriage equality issues because the issues were not relevant to the decision)t; or
(2) rule that the Prop 8 proponents do not have standing; or
(3) follow the path Justice Kennedy seemed to be headed down, and “dismiss as improvidently granted”.
A little background on the third option:
The Supreme Court is not obligated, except in very limited cases, to take an appeal. It takes the cases that it wants to decide. The Court takes an appeal in a small number of the cases presented to it, and denies “certiorari” in the rest.
When the Court refuses to take an appeal, the lower court decision stands. When the Court takes an appeal, the Court usually hears oral argument, decides the case, and issues an opinion.
Rarely, but often enough, the Court may take an appeal, hear oral arguments, and then decide not to decide. In that case, the Court dismisses the case as “improvidently granted”.
The legal effect of a “dismissal as improvidently granted” is exactly the same as if the Court had not taken the appeal in the first place. No opinion issued, no issues considered or discussed, and the lower court decision stands.
The Court dismisses cases as “improvidently granted” in relatively rarely, most often because either (1) the case, although presenting important constitutional issues, is not the “right” case in which to decide those issues, (2) the case, on reconsideration, is not “ripe for review” (that is, it is too soon to decide the issues) or (3) the Justices cannot form a majority to make a decision.
I would not have expected it yesterday, but I think we are headed for a dismissal.
Two (Justices Scalia and Alito, and possibly Thomas as well) seem to want to reverse the 9th Circuit as a vehicle for finding that marriage equality is not constitutionally protected, but none of the other Justices seem interested in that approach. Two (Chief Justice Roberts and Justice Breyer) seem inclined to decide the case on standing without getting to the merits, but it doesn’t look that a majority will form on standing. And two (Justices Ginsberg and Kennedy) seem to want to avoid making any decision at all on the merits at this time. Affirming the 9th Circuit decision barely mentioned during argument, it doesn’t look like a majority will form around that option, either.
I can’t figure out how a majority would form out of that mix. So my gut tells me that after all is said and done, the Court is likely to “dismiss as improvidently granted” without an opinion.
It is a shame after all the work that has been put in to the case, but the result is okay. The 9th Circuit decision will stand, and California will regain marriage equality.
But I hope I’m wrong. I hope that a majority can form around affirming the 9th Circuit decision, which is grounded in a constitutional principle: Constitutional rights, once in place, cannot be abrogated without a solid, rational basis. In short, the government cannot play “Now you see it, now you don’t” on constitutional rights. It is the decision I’ve been advocating since the beginning, and I think that it is an important principle.