The Prop 8 Oral Argument

This morning, the Supreme Court heard oral arguments in Hollingsworth v Perry, the challenge to the constitutionality of California’s Prop 8. There are lots of reports on how those arguments went and Oyez has a very cool page up that syncs the audio of those arguments with a transcript as well. Lyle Denniston’s recap of the arguments suggests that Kennedy may well be looking for a way to punt the case:

Supreme Court Justice Anthony M. Kennedy, in an unusually candid process of elimination of options in public, on Tuesday worked his way through the ways for dealing with California’s Proposition 8 ban on same-sex marriage and seemed strongly tempted to just take a pass. He appeared to be troubled about the Court entering “uncharted waters,” on the core issue of who may marry, but at the same time, he also did not look comfortable with any of the other, more limited options. So he openly wondered why the Court had agreed even to hear this case.

Focusing on Kennedy, although that is often the closest one can come to anticipating outcomes on a divided Court, was an even more reliable approach this time given that the other eight Justices were so clearly split: four friendly to same-sex marriage as a constitutional matter, three hostile to it — and, in the end, likely to attract a fourth to that view.

If the Justices, in the initial vote they will take on this case in private later this week, do not find themselves with a majority on any of the issues they canvassed, then they might well be looking for a way out. One way would be to find that the proponents of Proposition 8 did not have a legal right to be in court to defend it, but even that was a hotly disputed issue on the bench. The other way out was directly suggested by Kennedy, and pursued by him in more than a fleeting way: dismiss this case as one that should not have been accepted. A decision like that, though, could take weeks or months to reach…

As Kennedy openly reacted to these proposals, he seemed to be losing patience, and well into the argument said “there is a question whether this case was properly granted” — that is, was it a mistake for the Court to accept the Hollingsworth appeal for review. The lawyers at the lectern said it was a proper case that had been fully litigated, but Kennedy did not drop the idea.

Although that possibility did not pick up definite support across the bench, the fact that Kennedy was ready to consider it seriously may have been all that counted. It was quite clear that the Court’s conservatives had wanted the case to be reviewed, because of their dislike for the ruling by the Ninth Circuit Court striking down Proposition 8. But a decision by a controlling number of Justices to end the case as “improvidently granted” would be a way to avoid an even more widely splintered decision that might settle nothing at all of constitutional consequence on marriage.

I have been operating under the assumption that one side or the other had wanted that built-in procedural out in both cases so they had a way of disposing of them without reaching the merits in case they thought they couldn’t get Kennedy’s vote. But if Kennedy himself wants to take that out, it’s likely to be taken. Tom Goldstein had exactly the same reaction:

The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.

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.

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.

But 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.

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