The Apocalypse? Or Is It Just Me?

[furtech]

Very happy for many of my friends with regards to the Supreme Court decisions regarding marriage. Mazel tov!

However...when I read who was on the majority of the Prop. 8 decision, my brain exploded.

Scalia and Roberts helping to strike down Prop. 8??!WTF?

Kennedy and Sotomayor dissenting??!?

If there were a betting pool, I SO would have lost money with any combination of judges I would have thought possible.

Now, the HuffPost did explain:
If March's oral arguments were any indication, the justices' unusual alliances on Wednesday -- Scalia and Roberts with three liberals in the majority and Sotomayor joining Kennedy and two conservatives in dissent -- would have realigned to their usual ideological divides had they at all even noted Proposition 8's constitutional merits in their opinions.

Still...if anyone has a *simple* explanation for this juxtaposition of judges, I'd love to hear it.

Comments

[fenris-lorsrai.livejournal.com]

I'm going with some sort of Freaky Friday scenario of body swapping.

[slave-to-anime.livejournal.com]

It's totally because the judgement on the case was very technical. The case wasn't decided on the merits of the arguments. It was thrown out because the defendants didn't have standing to defend the law. That's more of an institutional judgement rather than a constitutional one.

Sotomayor probably joined the dissent because she believed the court had reasonable ground to stand on, though it'a good bet she would've wanted to then kill it dead outright. Scalia and Roberts went with the majority because it would be precedent setting to allow someone who had no legal standing in a case to try to act as defense (keeping in mind that the normal defenders of the law should've been the state of CA & Kamala Harris, who opted not to defend the law). It's also far easier to kick out a case on a technicality than it is to make a broad sweeping ruling.

[furtech.livejournal.com]

This sums up nicely what I did get out of the news reports. I think what I was missing was the politics/strategies within strategies.

[didjiman.livejournal.com]

It makes perfect sense. Roberts is not an activist, he's a legalist.

The Ruling is solely on the lack of Legal Standing of Prop 8 Repeal Challenge, not on Prop 8 itself. So it's a legal issue.

I think they way it works is that, Roberts took polls and said it's going to be 5-4 with Prop 8 going down in all cases (with different 5-4). So which one do we settle on, and they chose the least ideologue decision.

[furtech.livejournal.com]

I guess the end result is the same-- a win is a win. But it's like winning on a wild pitch or a walk: it doesn't -feel- like a victory...

[bovil.livejournal.com]

Walker's decision on Prop 8 was a technically superb and legally conservative shredding of Prop 8. The 9th Circuit decision on appeal was not as broad and was legally more conservative.

It really comes down to the Supreme Court's questions, though. This was a decision that set precedent on standing, not on marriage law.

I don't think Scalia wanted Prop 8 argued on its merits with those two lower court decisions as ammunition. Some very skilled jurists already shredded any arguments he might make. Not that it would have stopped him, or Alito or Thomas from upholding Prop 8, but it might have been enough to sway Kennedy and Roberts.

I don't think Roberts wanted to set a broad national precedent on marriage. He appears, as Richard points out, to be a conservative legal technician who mostly wants to lead the court to hair-splitting narrow decisions in the wake of Citizens United.

The dissent in CaliforniaHollingsworth v. Perry is also pretty technical, and hinges on the idea that someone has to be able to defend an initiative that state government hates. That makes sense in principle. It also doesn't say anything about the supporting justices' position on the merits.

In practice? I think California's initiative system has been twisted from a difficult-to-use progressive populist tool to force action on the part of a government that has abdicated its responsibility to its constituents into an easy hammer that lets elected officials abdicate responsibility to the mob and sell democracy to the highest bidder.

And the state did defend the law in federal trial court, where Walker struck it down. The state just didn't choose to appeal afterwards.

[furtech.livejournal.com]

Your defining each personality, along with typographer's bullet points, completes the picture for me. Thanks!

[bovil.livejournal.com]

Well, I didn't talk about Kennedy's legal demeanor, but I think that figures into typographer's strategic analysis. Kennedy's record shows a strong conservative streak balanced by a strong and idealistic desire for "fairness." He's written a lot of opinions and dissents (authoring opinions is often the reward for being the swing vote in a case, and Kennedy is clearly in what passes for the middle on this court) so there's a lot of record to go on. You can see this in both his dissent on Hollingsworth v. Perry and his opinion on Windsor (that made Scalia have purple apoplectic kittens because he didn't like being called a meanie).

I do think typographer was a bit off on Ginsburg's strategy. Based on other comments she's made, I think she didn't want a giant precedent-setting decision any more than Roberts did, because she doesn't think the country as a whole is ready, and she doesn't want a Roe v. Wade level of backlash. I think she did want a ruling that would mesh with the prevailing opinion in 2013 California, though, and this was the way to get it.

As we see more states legislatively enact marriage equality, I think Ginsburg and maybe Roberts will fall in line for a decision on the merits in a future case. As it is, there are no marriage-related cases on next term's docket, I expect to give more states time to figure things out.

[typographer.livejournal.com]

It's actually pretty clear.

On initial vote they probably had four camps:

At least two wanted to overturn on the merits and declare that there is no constitutional right to marriage for same sex couples, period.

At least two wanted to overturn because the proposition was enacted by a vote of the people, and since it seems clear that if the court didn't act, another proposition to repeal would be placed on an upcoming ballot, they might as well let that process continue.

One or two wanted to dismiss on standing and let the issue "cook" among the states for a while.

At most three wanted to uphold on the merits, and declare a constitutional right to marriage equality.

Then the circulation of draft opinions began (according to a number of biographies of former justices that is how they debate).

I think it became clear to Ginsburg that if four of the justices moved to the overturn on the merits position, that Roberts would switch to that position and marriage equality would be set back for years. Similarly, it was clear to Scalia that if four would go for upholding, that Roberts would go with them, thus ending bans on marriage equality everywhere.

So, for strategic reasons, both of them joined the dismiss on standing camp, Roberts joined, and we have a majority ruling that Roberts can claim is neutral. Ginsburg and Scalia have opposite reasons for doing it. For Ginsburg, dismissing on standing means marriage equality comes to California, and that's one more state. For Scalia, it means that marriage equality isn't declared, so it still leaves 37 states where he and his ilk feel safe.

[furtech.livejournal.com]

This...is EXACTLY the explanation I needed!! Thanks!

Particularly useful to me was the vote strategy-- the different scenarios (annotated) and the individual considerations as influenced by the bigger strategies. You have summarized this in a way that is perfectly clear and succinct.

[porsupah.livejournal.com]

I suspect the above is fairly accurate. ^_^ Ultimately, legal rulings of that level tend, not uneasonably, to be quite conservative, in the sense of affecting fewer people rather than more.