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

[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.