Although it’s a fool’s errand to prognosticate the Supreme Court’s ruling, nobody should get their hopes too high

Posted by Mike Merritt in Constitution on

EqualityHere we go again! Today the media, no doubt feeling the need to amp up what were already interesting proceedings in the oral arguments for Hollingsworth vs. Perry, tried to make predictions on the ultimate ruling of the case, based solely on the questions asked by the justices to the lawyers from both sides.

The conclusion? That because some of the justices didn’t seem to be on board with a national ruling striking down laws banning gay marriage, that the case is somehow already decided.  Notably, that commentary made by some justices, even those on the liberal wing, may indicate that they will rule to toss the case entirely:

As the Supreme Court on Tuesday weighed the very meaning of marriage, several justices seemed to have developed a case of buyer’s remorse about the case before them. Some wondered aloud if the court had moved too fast to address whether gay and lesbian couples have a constitutional right to marry.

“I just wonder if this case was properly granted,” said Justice Anthony M. Kennedy, who probably holds the decisive vote.

Justice Sonia Sotomayor said there may be value in letting states continue to experiment. “Why is taking a case now the answer?” she asked.

These and other comments were used to pound the message that basically said: “It’s already doomed.”  Of course, that’s hogwash. It’s not doomed because no votes have been taken and no opinion has been written. And it’s not doomed even if the justices toss the case. That’s because there’s a few ways the case could be decided (major hat tip to Doug Mataconis at Outside the Beltway and Tom Goldstein of SCOTUSblog):

  1. In the biggest win for SSM proponents, the Court strikes down every ban on SSM in the nation.
  2. In one of the biggest losses for SSM proponents, the Court holds up Prop 8 and it remains until the democratic process can remove it from California’s constitution.
  3. In a smaller win for SSM proponents, the Court could decide the petitioners (the opposition) lack standing. The case would be tossed, the Ninth Circuit’s decision is vacated, but a district court ruling invalidating the ban on equal protection and due process grounds is left standing. The case could be re-argued at a later time by different parties.
  4. The Court may dismiss because the can’t come to a majority. That would leave standing the Ninth Circuit ruling, which declared Prop 8 unconstitutional.

Take note that in three out of four of the directions the Court could take, Prop 8 falls. However, in only one case does the Court also knock down every other ban across the country, and that is what the media attention was focused on today. But I think it’s too early to say what the Court will do. If you remember, at about this time last year, it seemed that much of the conservative wing was ready to declare the Affordable Care Act unconstitutional, at least in part. Well, here we are a year later, and the issue seems to have been mostly settled, even among Republicans in Congress.

Trying to guess the Court’s mind based on their questions and commentary at this point really is a fool’s errand. Doug puts it best:

As I noted during the Obamacare cases, trying to draw conclusions about what a Court might do from oral argument is often a mistake. Sometimes, Justices ask questions for the purpose of testing some portion of the legal theories behind the case. Sometimes, indeed quite often I’d suggest from my own experiences, they are playing “devil’s advocate,” asking a question that they don’t necessarily agree with in order to elicit from counsel an idea of just how far their legal theory could be stretched.

So why don’t we just wait to find out what the ruling is, to avoid having another DEWEY DEFEATS TRUMAN moment, like happened when the Obamacare ruling was announced?

All that said, I think the strongest SSM proponents need to lower their expectations. There is a very real possibility that only Prop 8 will be left in the dust when all this is over. Don’t forget, this happens in two out of four times because the petitioners are ruled to lack standing, or because the justices can’t make up their minds. There is also the slighter possibility that Prop 8 stands. Anything could happen, but I think supporters need to be ready for some disappointment.

Honestly, if Prop 8 gets knocked down but the other bans don’t, I don’t think it’s the end of the world. If that happens, especially if the Ninth Circuit decision is left standing, it will send a pretty strong message to other areas of the country, and will probably lead to some interesting jurisprudence in other cases. The path to legalization will be a longer road, but with popular sentiment quickly turning in favor of SSM, the clock is ticking.

Wrapping it up, I can’t wait for tomorrow, when the guessing games will happen again for United States vs. Windsor! (/sarc) That case will decide whether section 3 of the Defense of Marriage Act is unconstitutional.

Addition: From the oral arguments from Tuesday, a quote from defense attorney Ted Olson:

You could have said in the Loving case, what — you can’t get married, but you can have an interracial union.

Boom! Pack it up, everyone. I think the case was made right there.

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