Early tea leaves from Supreme Court arguments on gay marriage: Kennedy hints that he wants Prop 8 case dismissed?

Just want to get this up before fuller reports of this morning’s oral arguments start trickling in. SCOTUSblog is on the scene and says we may, against all odds, see this case dismissed:


That last tweet is … quite a statement, especially coming from a respected site. How can they say that with any assurance? After day one of arguments on ObamaCare, it sounded like the conservative bloc was all set to torpedo the law. You know how that turned out.

More from BNO:

Makes me wonder if we’re looking at some sort of three-way split, in which the four liberals vote to strike down Prop 8, Scalia, Alito, and Thomas vote to uphold it, and Roberts and Kennedy vote that the plaintiffs don’t have standing. (More on that in a bit.) With a posture like that, with only plurality support for a particular position, that position would have no binding precedential force on the lower courts. Stand by for updates; SCOTUSblog should have a fuller post up soon.


Update: If you missed it a few days ago, here’s former federal judge (and potential GOP Supreme Court appointee) Michael McConnell on the standing issue:

Even though the stage seems set for a momentous ruling by the court, the litigation actually offers the justices a golden opportunity to resolve these cases without setting a precedent either way, and to reaffirm the ideal of democratic, decentralized decision-making.

In Hollingsworth, the Proposition 8 case, the state of California has declined to defend the state’s own law. The Ninth Circuit Court of Appeals allowed a group of private citizens, proponents of the proposition, to step in and defend the law in court. Former Solicitor General Walter Dellinger, who served under President Clinton, has filed a friend of the court brief arguing persuasively that these intervenors do not have standing to sue (meaning they have no legal stake in the issue, but only political interest). He has precedent on his side. More than 25 years ago, in Diamond v. Charles, the court held that a pro-life doctor did not have standing to defend an antiabortion law in court when the state attorney general refused to do so. The same lack of standing is true here.

If Mr. Dellinger is right (and I think he is), the Supreme Court has no jurisdiction to decide the Proposition 8 case, and neither did the Ninth Circuit. The court should vacate the decision striking down Proposition 8, leaving in place the original district-court order that prompted the case by allowing two same-sex couples to marry, but depriving Hollingsworth of precedential effect.


Ironically, the refusal of California’s political establishment to defend Prop 8 in court might end up destroying their best chance to see gay marriage legalized nationally by the Supremes.

Update: The Court’s supposed to release audio of today’s arguments within the next hour or two. Until then, Reuters is liveblogging from the scene. And here’s another tea leaf:

Update: SCOTUSblog doubles down:

Don’t be too sure that Kennedy is the fifth vote here. Conn Carroll makes a fair point about Roberts:

Remember, Chief Justice John Roberts initially voted to overturn Obamacare on the merits of the case and the law. But he then switched his vote for entirely political reasons to protect his legacy as Chief Justice. In other words, the legal arguments that lawyers will make this week and the legal questions the justices will ask, are all almost entirely irrelevant. The only question on Chief Justice Roberts mind when deciding these cases will be, “Can SCOTUS survive a gay marriage loss?”…

There simply is zero chance that Roberts would put his Court on the wrong side of history by upholding California’s Proposition 8 or DOMA. At best, Roberts will take a weaselly way out and find ways of skirting the substance of the issue on each case. But even that is unlikely. Instead, same-sex marriage opponents should begin preparing themselves now for the high likelihood that gay marriage is about to become a constitutional right.


In fairness to SCOTUSblog, though, Reuters is getting the same strong vibe from Kennedy:

Update: Another good tick-tock of oral arguments from the WSJ. Noteworthy:

Justice Antonin Scalia asked Olson when exactly it became unconstitutional to bar gays and lesbians from marrying. Was it 1791? 1868? Mr. Olson responded with a question of his own: When did it become unconstitutional to ban interracial marriage?

Don’t try to answer my question with your own question, Justice Scalia responded. Mr. Olson then said he could give no specific date on which a ban on gay marriage became unconstitutional. But courts, he said, have never required that kind of precision.

Update: Here’s where all the tea leaves on standing are coming from:

Update: Here’s Tom Goldstein’s post at SCOTUSblog on the hearing. His prediction: A 4-1-4 split, with Kennedy holding out for dismissal of the case due to lack of standing.

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.

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8. Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it.

Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.


He seems more certain about Roberts’s vote than I am, but then he’s the expert.

Update: Here’s your transcript of this morning’s arguments, courtesy of the Journal. And here’s the audio via the Court itself.

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