Supreme Court predictions: how did I do?Politically Aware, Bottom Highlights Thursday, April 4th, 2013
Commentary: Politically Aware
The oral arguments on Proposition 8 (Hollingsworth v. Perry) and the Defense of Marriage Act (DOMA, United States v. Windsor) are over, and the pundits have had a week to sift through the transcripts ad nauseum. I think it’s only fair to take a look at what Politically Aware got right and wrong. http://lgbtweekly.com/?p=35247
First, I added some lawyers and skipped others. In Hollingsworth, there weren’t any San Francisco lawyers. In Windsor, Vicki C. Jackson was asked by the Court to argue against the standing of the Department of Justice (DOJ) and the Bipartisan Legal Advisory Group (BLAG). Sri Srinivasan argued those points for the DOJ, and Roberta Kaplan represented Edie Windsor. On to the issues.
For Hollingsworth v. Perry, some of you probably thought five possible outcomes were too many. Turns out they are now at 3 more, though the end result for California is often the same.
Neophyte analysts like myself added a new phrase to our lexicons: “Dismissed as improvidently granted,” or “DIG”. This means the Court decides it shouldn’t have taken the case in the first place.
It can happen, because it only requires four justices to accept a case, but five to make a decision. In light of Justice Kennedy’s comment that “I just wonder if – if the case was properly granted,” DIG seems a real possibility. Justice Scalia’s assertion on dismissal, that “It’s too late for that,” suggests that it was the conservatives, or at least he, who wanted the case. If Kennedy can convince others to “DIG” it, the Ninth Circuit decision invalidating Proposition 8 stands and it’s back to the altar for same-sex couples in California.
If Kennedy wants to DIG, but can’t get four others to shovel, we could go to option 7: No decision. If three justices want to uphold Proposition 8, three want to strike it down, and three want to DIG it, there is no decision and again, the Ninth Circuit decision overturning Prop. 8 becomes binding.
Option 8 is a little trickier. Though Windsor was argued second, it could be decided first. To buy a couple more years, the Supremes could decide the DOMA case, and send Perry back to the Ninth Circuit, to be reconsidered in light of the DOMA decision.
The Justices largely behaved as expected on Prop. 8, at least with regard to California. Thomas said nothing. Scalia, Roberts and Alito seemed willing to uphold it. Kennedy seemed tortured, questioning the strength of the data concerning the efficacy of same-sex parenting while worrying about the voices of the children of same-sex parents. Ginsburg, Sotomayor, Kagan and Breyer seemed ready to strike it down. If there was a disappointment from the liberal side, it was that they seemed unready to endorse a nationwide fundamental right to same-sex marriage.
Compared to before the arguments, a sweeping decision overturning all bans seems less likely and upholding Prop. 8 seems slightly less unlikely. Sadly, the smart money is probably on a DIG or a dodge, perhaps based on standing, the issue on which Chief Justice Roberts forced all lawyers to start.
The Justices also held true to form in Windsor, suggesting there are five votes to strike down DOMA, but perhaps not the way Solicitor General Verrilli would have liked. Verrilli singularly pushed the idea that DOMA was unconstitutional on equal protection grounds, despite entreaties from Kennedy to discuss states’ rights. In retrospect it shouldn’t be a surprise, since the DOJ will rarely be on the side of limiting federal powers and an equal protection decision would buttress arguments for overturning all the same-sex marriage bans.
Justice Kagan had the moment of the week responding to Paul Clement’s argument that DOMA was passed to ensure uniformity in federal marriage recognition. “I’m going to quote from the House Report here,” said Kagan, “… Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.” That may not sound dangerous, but it was a shot aimed right at Justice Kennedy, who’s Lawrence v. Texas decision said moral disapproval didn’t justify laws against sodomy.
Still, it’s not clear that DOMA will be decided on equal protection. The legal odds-makers still think it’s going down, but more likely with four equal protection votes and Justice Kennedy agreeing on federalism, preventing a precedent that laws discriminating on the basis of sexual orientation require higher scrutiny.
That’s how the tea leaves are falling now. Can the senators coming out for same-sex marriage or rapidly swinging public opinion change their minds? We’ll likely know the decision by June, but we may not know all the reasons until the current Justices release their papers after their retirement.
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