How much will the facts in the Prop 8 ruling matter on appeal?

If the Supreme Court agrees to hear the case, I don’t think the factual record will matter very much. I think that for three main reasons. First, the Justices will know that this case presents a defining moment for their respective tenures on the Court. This will be one of the biggest decisions of their careers, and its importance transcends a single trial before a single judge with a particular set of witnesses. These sorts of mega-big-picture cases tend rest less on the details of the factual record than other cases. Second, the Justices will certainly recognize the same point that Dahlia Lithwick and the Sullivan commenter made — that is, Judge Walker was trying to use his facts to make an argument designed to persuade the Justices to agree with him. For better or worse, I suspect a majority of the Justices will respond to that dynamic by significantly discounting those facts.

Finally, a majority of the Court had relatively harsh language about Judge Walker’s rulings on broadcasting the trial when it took the remarkable step of overturning his order back in January. This passage at the end of the Supreme Court’s per curiam opinion stands out…