The Prop 8 Oral Arguments Before the Supreme Court

Picture-1A momentous morning in the Supreme Court. All the work, analysis, speculation, briefing and lobbying culminated in an oral argument in Hollingsworth v. Perry lasting nearly an hour and a half – half an hour over the scheduled time. There are a lot of reports and opinions floating around about what transpired.

Here is Tom Goldstein

Here is Reuters led by Lawrence Hurley and David Ingram

Here is Lyle Denniston of SCOTUSBlog

Here is USA Today

Here is Huffington Post’s Mike Sacks with a video report

Here is Ryan Reilly and Mike Sacks with a written report at HuffPost

Suffice it to say, we do not know a heck of a lot after oral arguments than we did right before them. The full range of decision is on the table. However, there were certainly some hints given. Scalia and Alito are very hostile, and Thomas is almost certainly with them in that regard although he once again stood mute. Ginsburg, Kagan and Sotomayor seemed receptive to the Ted Olson’s arguments. Breyer oddly quiet and hard to read. As is so often the case, that left Anthony Kennedy in effective control of the balance.

If Kennedy’s tenor at argument is any guide, and it isn’t necessarily, he is unlikely to sign on to a broad ruling. In fact he may be struggling with standing, but that is very hard to read. Several commenters I have seen interpreted Kennedy’s questions as having a real problem with standing and signaling a possibility of punting the case on that basis. From what I have read so far, I wouldn’t say that…and neither does Adam Serwer, who was present at argument.

So, in short, I would summarize thusly: Standing is a bigger issue than I had hoped, and there is more resistance to a broad ruling than I had hoped. But the game is still on. Remember when Jeff Toobin’s train wreck/plane wreck take after the ACA oral arguments; you just don’t know and cannot tell.

I will likely be back later after analysis of the pertinent material. For now, let me leave you with that material and media so you too can hear and see the groundbreaking day in the Supreme Court:

Here is the full transcript of the oral arguments

Here is the audio of the proceedings

Enjoy, and I look forward to discussing this! And, again, there will be updates to this post throughout the day, so keep checking for them.

[As always on these Prop 8 posts, the absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

27 replies
  1. Teddy says:

    Thanks for this great roundup, bmaz. I remain confounded by a legal process that can go on for more than two years, only to potentially end at the land’s highest court with a curt “you people don’t belong here” dismissal, which is how a decision on standing appears to us laymen. But, of course, with stalemate the preferred DC model now, perhaps SCOTUS has caught the bug from across the plaza and would rather not get involved.

    So, then: why take the case at all? Are we seeing an unusual example of the “take the case?” decision play out in public at oral arguments? Or is Anthony Kennedy being his usual devils-advocate best?

    No one expects fairness or modernity from the Three Stooges, but I am also disturbed by the glimpses of conservatism on this issue from Kagan. Oh, for a full-throated in-her-prime liberal to counter Alito!

  2. bmaz says:

    @Teddy: Well, as ACA showed, who the heck knows what will transpire by decision day. Should be noted, there is a possibility even more extreme than no standing: the court can issue s “DIG” which stands for “Dismissed as Improvidently Granted”. In short, the ultimate in the “second thoughts” you ponder.

    Frankly, I think either standing will be found and decision simply to uphold the 9th, or no standing found, which leaves Walker’s opinion in place. I just don’t know. But I do not come out of today with high hopes, in fact a little deflated.

  3. JTMinIA says:

    Could you, in a few sentences, explain what happens if standing is denied and the Ninth’s decision is vacated? What does that take us back to?

  4. Teddy says:

    I do think it’s important, as with ACA, to recognize that The Big Show (oral arguments) has become just that: all show. And that whatever has already happened, or happens this week, or happens between now and June, remains as opaque at SCOTUS as ever. The public, and the media, has invested a tremendous amount of credit in Orals (because we see and hear them, duh) but I’m not sure there’s any evidence they move individual justices in any way.

    Kennedy, for instance, could be just as easily seeking language, from attorneys on all sides, to defend standing as to dismiss based on it. I think drawing conclusions, particularly about Roberts and Kennedy, based on Orals, is a fool’s errand.

    And yet there appear to be many fools today!

    The nice thing about a dismissal over standing would be that the ridiculous Ninth appeal decision would be vacated, correct? So the excellent Vaughn Walker decision would become settled law.

  5. bmaz says:

    @Teddy: Yes, a no standing finding likely affects the 9th decision as well and takes it back to Walker’s decision. Now, the better question is, does Walker’s decision really cover the whole state or only the two counties from which the plaintiffs hailed? I think the better take is the whole state, but I can see the H8ters litigating that fiercely.

    @JTMinIA: Hope this answers your question as well

  6. Peterr says:

    @bmaz: The more I think about this, the more I’m wondering about tomorrow and the DOMA arguments. I have a hard time seeing SCOTUS punting on Prop 8 and then issuing a definitive ruling on DOMA. Yes, they are separate cases, but they are clearly interrelated.

    Imagine the nightmare if DOMA were struck down and the Prop 8 case pushed back to Walker’s ruling over questions of standing.

  7. Teddy says:

    @Peterr: Well, the nightmare you posit seems to be the likeliest outcome based on today’s prognostications from people in the know who were at the Court. Although I don’t ever believe anything people presume from Orals any more, folks who do seem to think H8 will be returned to Walker on standing issues — is this a rebuke to him, by the way, in that he granted them standing? and that DOMA won’t survive.

    I am interested in seeing The Widow Edie Windsor’s cell phone and internet, though. Apparently, according to Alito, her 41-year marriage is newer than her cell phone. Interesting.

  8. bmaz says:

    @Teddy: He granted them standing, yes, but there was nominal defense cover from the state at the district level in front of Walker, so his decision is solid in that regard. It is only on appeal where the standing issue gets critical.

    @Peterr: Peter, I think that is easier than you think. DOMA can be decided on strictly federalism grounds so that the ruling does not track into the Prop 8 issues.

  9. Peterr says:

    @bmaz: But if DOMA is decided on federalism grounds, SCOTUS is saying “This is worth settling on a federal level” — precisely the opposite of what they’d be saying if they vacate the 9th Circuit opinion and punt Prop 8 back to Walker.

  10. Ben Franklin says:

    Via Balkinization;

    Courtesy of a live blog from the WSJ:

    JUSTICE SCALIA: When did it become unconstitutional to ban same-sex marriage? Was it 1791? 1868?

    TED OLSON: When did it become unconstitutional to ban interracial marriage?

    JUSTICE SCALIA: Don’t try to answer my question with your own question.

    BTW; I think there is a chance Thomas may separate himself from his dominant twin.

  11. Peterr says:

    @bmaz: No, they’re not similarly situated, but they present the same issue with regard to urgency. To say with DOMA “We HAVE to decide this now, because confusion at the lower court level on this is intolerable and cannot be allowed to continue,” and then at the same time to say with respect to Prop 8, “the time is not ripe for this; let’s let the states chew on this for a while yet, or let things play out in the realm of the electorate over the next couple of years” they’re sending the ultimate in Constitutional Mixed Messages.

    Either the confusion around marriage equality requires a solution now, or it doesn’t, and SCOTUS can’t have it both ways. To pretend it does with DOMA and doesn’t with Prop 8 is a giveaway that the problem isn’t with the law or the cases, but with the willingness of at least some on SCOTUS to actually make a ruling in a difficult case with political overtones.

  12. Peterr says:

    I’m still working my way through the transcript, but after reading how all three attorneys were grilled on standing (Cooper, Olson, and Verrilli), the attorney for BLAG better be ready to explain why they can defend DOMA when the executive branch refused to do so.

    Suddenly I’m seeing a serious possibility of both cases being punted over standing. They REALLY don’t seem to want to touch this stuff.

  13. Peterr says:

    @Teddy: A great piece.

    I also like this part:

    Anyway, Denniston thinks — and I agree — that the Court will do almost anything to kick this particular can back down the road to the states. (Although the argument that the Court should not rule in favor of marriage equality because there will ensue raging and Bible-banging and poo-flinging drives me straight up the wall. To quote Charlie Skinner from The Newsroom: “I’m too old to live my life in fear of dumb people.”)

    Maybe the justices could watch The Newsroom during their discussions in chambers.

  14. The Opium Wars says:


    Rather Than Fix The CFAA, House Judiciary Committee Planning To Make It Worse… Way Worse

    Adds computer crimes as a form of racketeering

    Expands the ways in which you could be guilty of the CFAA — including making you just as guilty if you plan to “violate” the CFAA than if you actually did so

    Ratchets up many of the punishments

    Expands the definition of “exceeding authorized access” in a very dangerous way

    Make it easier for the federal government to seize and forfeit anything

  15. JTMinIA says:

    @Ben Franklin: wow

    JUSTICE SCALIA: When did it become unconstitutional to ban same-sex marriage? Was it 1791? 1868?

    TED OLSON: When did it become unconstitutional to ban interracial marriage?

    Oh, snap! My next pet is being named Ted Olson.

  16. bmaz says:

    @JTMinIA: I know you, you been around a good long while, this statement would not have issued a few years ago.

    Oh, and I am totally with you in that sentiment!

  17. Peterr says:

    @P J Evans: The WSJ edited that section quite a bit to connect those two statements directly. There was more than a little in between each of the back-and-forth comments cited @12.

    Not that Scalia doesn’t come off looking like a bad comic at various points of the oral argument, but he doesn’t need help from a bad editor to do that.

  18. P J Evans says:

    I saw an unedited (or at least less-edited) version, also.
    I still think Scalia should know better, especially when some people are trying to claim he’s one of the current best conservative judicial minds.

  19. Bill Michtom says:

    The idea that Scala is a great legal mind, which has always been paraded around about him, should have been completely tossed (not that it was ever valid) with his dissent in Edwards v. Aguillard.

    So much of what he does is trying to justify his prejudices with faulty theories about and references to the Constitution.

    He’s a hateful person.

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