Thursday, June 27, 2013

Crazy 8

Last year I predicted the Supreme Court would punt on gay marriage, and I'm at least half-right.  In Hollingsworth v. Perry, the case about California's Proposition 8, the Court avoided the substance of the issue and vacated the lower court's opinion by declaring the petitioners had no standing.  Unlike the 5-4 split of the other same-sex marriage case, this one was unusual--Roberts' majority opinion was joined by Scalia, Ginsburg, Breyer and Kagan while Kennedy's dissent was joined by Thomas, Alito and Sotomayor.

Not sure if I like the reasoning of the majority.  Standing is one of those tricky procedural issues, and it's often seemed in the past that conservatives had a narrower view than liberals, but perhaps that's changing.  It's hard to say how this precedent will play out, but if the initiative system was created to give people direct access to creating laws--sometimes over the heads of elected officials--it's strange then that these very same people are not allowed to have any say in court regarding that law, and if state officials don't want to defend it then that's that.


Anonymous Anonymous said...

Well, reasoning purely from the distribution of the votes, it is heartening to see that the issue of standing is not wrung through the phony lib/con filter

6:30 AM, June 27, 2013  
Anonymous Denver Guy said...

I think that Roberts may be the most politically saavy Chief Justice since John Marshall. He has threaded needles and accomplished conservative jurisprudence goals without being trashed in the media as a monster, mostly because the accomplishments are subtle and not readily apparent to the non-legal eye.

Start with Obamacare - he actually won plaudits for the decision that allowed Obamacare to take effect, but he did so while getting a majority to agree that the plan was not within the commerce power, and that it was a tax (which some day will be a great camapaign issue for Republicans).

In the DOMA ruling (I know it's Kennedy's decision), Roberts got Kennedy, who is a huge Equal Protection proponent, to base the decision largely on that and federalism! And the liberal justices went along with it (none of them issuesd a concurrence disagreeing with the concept that it is a State's right to decide what marriage will mean).

As for Prop 8, I think Roberts could have forged a majority to turn over the District Court decision, but reasoned why do it in a case where I can make points about jurisdiction, and the overturn would likely be undone by a subsequent referendum in CA anyway. There is language in both marriage opinions that cast doubt on any discovery of a constitutional right to marriage - rather we see deference to the States rights to manage marriage, and focus on the need to treat people equally.

Lastly, the VRA case. The left is up in arms, yet their yelps are hollow, given that the 2009 Austin v Holder case gave fair warning that the VRA formula was obsolete and couldn't stand constitutional scrutiny. This was in 2009, when the Dempcrats had the House, Senate and Presidency. And they failed to act - where then does the blame lie (for those who wish to assign blame). How will Southern Democrats, or even mid-Atlantic Democrats, aregue in their campaigns that they want their own states to be resubmerged under preclearance requirements?

It could all be happenstance, but I think I see evidence of Intelligent Design ;-)

7:52 AM, June 27, 2013  
Anonymous Anonymous said...

Or, it could be the exact opposite. That Roberts, who seemed like such a solid conservative, is a sellout, who gives in too easily to the fear of harsh words at cocktail parties.

Any "majority" he patches together from the right and left (and usually he can't manage it--usually it's Kennedy who decides who wins) is merely temporary, and if--as is reasonably likely--the liberals get one more vote on the Court, they will trash any Roberts' precedent, or at least get around them, without a single thought. That's why it's so damn funny when his supporters claim he's playing a "long game." There is no long game! Conservatives have a barely functioning 5-4 edge and if they lose it, it's all over.

Overturning Obamacare, which was the right thing to do, legally and morally, was more important than winning a thousand little pointless victories on other cases. If Roberts had done this, and all signs indicate he was going to until he got weak at the knees and wrote that stupid opinion that will mean so much pain and misery for the world, he'd be a great man and a great justice. But because he compromised, his reign as Chief Justice is nothing less than a disaster.

10:04 AM, June 27, 2013  
Anonymous Anonymous said...

Yeah, sorry DG, but I think anonymous has this one right.

But it's sort of like the Soviet Union. We're probably on the verge of catastrophic discontinuity, so it's sort of like worrying about shoots when the trunk has rotted away.

10:23 AM, June 27, 2013  
Anonymous Lawrence King said...

Ginsburg has said multiple times that she feels Roe v Wade short-circuited a democratic process. I suspect that she and Roberts voted the way they did because they didn't want SCOTUS to settle this case on the merits, and needed to find an excuse to do that.

But I agree their excuse is silly. In the 1910s, the Progressive movement invented initiatives and recalls for the same reasons. Wouldn't Roberts' logic apply equally to recalls? If 60% of California voted to recall Gray Davis, but he refused to leave office, and none of the other California executives filed a suit -- and the Secretary of State refused to call an election to fill the position, instead recognizing Davis as the governor -- then this decision would mean that no California voter would have standing to sue Davis.

1:23 PM, June 27, 2013  
Anonymous Denver Guy said...

I agree that I didn't think they would let Perry go down on procedural grounds, precisely because it allows a bootstrap - Judge rules and no appeal is possible, depriving the people of their right to self-govern. However, I'm wondering if anyone will challenge the effect of Walker's District Court ruling. One Orange County Justice of the Peace refusing to issue a same sex marriage certificate on the grounds that Walker's ruling from another district doesn't control him, and the case is back in court.

7:45 AM, June 28, 2013  

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