Bad to Worse

As a legal strategy, the Prop 8 litigation was always a high-stakes bet. The bet was that there were either five votes on the Supreme Court to strike down Prop 8 or that, by the time the case works its way up, there would be five votes to do so. And let's face it: if the lower courts strike down Prop 8 the pressure on the Supreme Court to consider the case will be overwhelming. A successful outcome for David Boies and Ted Olson means a successful outcome in the Supreme Court -- not merely a win in Judge Walker's trial court or even a win in the Ninth Circuit Court of Appeals.

Like many others, I was dubious from the beginning about this bet. I don't see how you get to a 5-4 majority on the current Court to strike down Prop 8. The hope has been that Justice Kennedy would join the Court's liberal wing in such a decision. I'm not completely convinced that even this liberal wing -- Justices Stevens, Breyer, Ginsburg, and Sotomayor -- will take on the marriage laws of 45 states. Whatever else one thinks of their constitutional philosophies, the Court's liberals are not nearly as adventurous or as aggressive as their liberal forebears.

But even if they voted to strike down Prop 8, it's even less certain that Kennedy would side with them. If nothing else, the recent decision he joined to prohibit the broadcast of the Prop 8 trial -- a decision that diminished whatever political salience it might have had -- suggests that Kennedy believes the beleaguered group needing the extraordinary protection of courts is the supporters of Prop 8.

Now two factors have made a favorable outcome in the Supreme Court even less likely than when the litigation was filed last year. The first is the election of Scott Brown to the Senate from Massachusetts. This denies the Democrats a filibuster-proof majority. The second is the likely retirement this summer of the most stalwart of the Court's liberals, Justice Stevens.

The possibility of a filibuster of the president's nominee to replace Stevens will likely have a moderating effect on Obama's choice, which means the replacement will be somewhat less likely to vote to strike down Prop 8. With Republican gains in the Senate this fall, any hopes for strongly liberal nominees to replace conservatives before the 2012 election seem even more vain.

All of this is speculation. Maybe Kennedy is on board. Maybe Justice Stevens won't retire. Maybe his replacement, or a replacement for a conservative in the next couple of years, will surprise us. Earl Warren the nominee wasn't Earl Warren the Chief Justice. Maybe the Republicans won't mind letting one strong liberal be replaced by another and will let it go just as the fall election approaches. Maybe lions will lie down with lambs.

But as of now, the Prop 8 litigation bet just went from bad to worse.

7 Comments for “Bad to Worse”

  1. posted by bryanj on

    so, apparently according to the author, gays should not even try. nothing is going to get done legisltively (see nj/ny) and until the supreme court grants us our rights, we are suffering. we need to start knocking on their door and not stop until we are granted full and equal rights. why doesn’t the author realize the harm being a second class citizenry does (suicide rates/drug rates/etc….) the authors do nothing approach borders on homophobia.

  2. posted by Jorge on

    Oh, brother. Stevens has been about to retire for the past 10 years. Also, the time for there to have been be a filibuster on an Obama Supreme Court Justice was for Sotomayor, someone about whom there was a strong case that she was too biased to be qualified. She did not get a 60/40 split in the Senate, let alone a filibuster or even an entirely partisan vote out of committee. Since there wasn’t a filibuster for her, there will be no strength behind a filibuster for a future Justice, no matter who s/he’s replacing.

    Oh, and “I made two [mistakes], and they’re both sitting on the Supreme Court” notwithstanding, what are the chances Obama is going to nominate someone he thinks will mandate gay marriage nationwide?

  3. posted by Jon on

    bryanj: The article is about the likely outcome of the Prop 8 trial, which none of your comments relate to. Additionally, the author is homosexual; do some research next time.

    Jorge: I don’t follow the logic of your argument. Sotomayor’s judicial record was (at most) moderately liberal. Additionally, the political situation is vastly different today than when she was confirmed. There is definitely reason to suspect that a more liberal nominee would face a tougher confirmation process especially if you’re looking into 2011 with a Senate that is more in the neighborhood of 52-48 than 59-41 as it is today.

  4. posted by GayOne on

    OK boys, now that we want marriage, are we finally ready for MONOGOMY! Somehow, I don’t think Boies and Olsen will be arguing that’s going to happen.

  5. posted by ThinkTwice on

    Republicans on the CA Supreme Court delivered marriage equality. 12-0 decision in Iowa; I am sure there were conservatives on that court. At the end of the day, denying LBGT people access to marriage is a clear violation of the 14th amendment and equal protection. Even Scalia should be able to see that. I would predict a 6-3 decision. Alito, Thomas, and Scalia against; all others for. Roberts may surprise us – in a good way. Also, the factual record that has now been established in CA district court is damning to the defense. It was actually a GOOD THING that cameras were barred because now the defense cannot say they were at a disadvantage in the case. They cannot claim that cameras scared away their witnesses, because those were barred. They can’t use that excuse. They have no excuses. Progress toward equality takes decades. For every Dred Scott decision the Court has handed down, they do eventually follow-up with a Brown vs. Board decision. Regarding this current court, I would bet they get it right – the first time. Romer and Lawrence are two of the most significant Supreme Court cases that had a direct bearing on the lives of LBGT people. Kennedy ruled favorably in both of those cases. I say 6-3, in favor of equality. There will not even be a need to elevate LBGT people to suspect classification for this ruling as there is not even a rational basis from excluding a group of people from the protection that the 14th amendment offers them.

  6. posted by Wayne on

    To “ThinkTwice”:

    I hope you’re prepared to be disappointed when the 6-3 vote by the USSC is in favor of upholding prop 8! The other person joining the conservatives is Sotomayer; she is a Hispanic and Catholic, and Hispanics are notoriously “conservative” when it comes to social issues. Also, her parents were married and she will respect that God-ordained Institution and say “Hell No” to Perverted Unions!

  7. posted by ThinkTwice on

    To “Wayne”:

    First, learn how to spell. It’s Sotomayor, not “Sotomayer.” Being Hispanic and catholic will have no bearing. In fact, Catholics are more accepting of gay rights than most other denominations, if you do the research. There is nothing “God-ordained” in prohibiting people from entering into a civil contract, a civil marriage. Surely Sotomayor has an IQ higher than yours to know the difference.

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