March 26, 2013

"Breaking: key vote Kennedy VERY uncomfortable striking down #prop8."

"Suggests dismissing case. Would leave in place 9th Cir pro-#ssm ruling."
There are not 5 votes to strike down #prop8 and recognize equal right to #ssm at this time
SCOTUSblog tweets from the oral argument.

Note the significance of "Would leave in place 9th Cir pro-#ssm ruling." Prop 8 will still be stricken down, because that's what the 9th Circuit decided. I want to see the transcript (and hear the oral argument) before reacting too much to these characterizations.

So Kennedy performed the Theater of the Very Uncomfortable. That could set the stage for exercising the very painful duty of pronouncing a law a nullity. It's supposed to hurt! It's not what we want, but what we must do.

(Calling judicial review a "painful duty" has a long pedigree.)

MORE: Here, from SCOTUSblog's Tom Goldstein:
The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.

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....

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.
But of course Kennedy would hang back in contrast to the 4 liberal Justices. His difference from them doesn't mean he won't join them in the end.

I'll say more when I've heard the argument myself. 

83 comments:

edutcher said...

He said this about a month ago.

Ann Althouse said...

"He said this about a month ago."

Who said what?

Jay said...

Interesting.

So "tea leaf" reading. Two possible ways this could go (assuming this Tweet is true)

1. If there is no appetite to strike down prop 8, how can he vote to strike down DOMA which passed Congress by huge majorities?
So he won't.

2. This is a fig leaf to the right before striking down DOMA. Remember Kennedy is the "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" guy after all.

edutcher said...

Kennedy said he was becoming very uncomfortable with the bench dictating policy.

Thank Heaven (no, this doesn't mean we still can't be sold out, but...)

edutcher said...

PS I know I mentioned this in a comment when it came out.

Matthew Sablan said...

I'm very uncomfortable with eating cookies for breakfast, but I'll still do it when I think it is the right thing to do.

AJ Lynch said...

So he is kicking the can back down the road to the appeal court which said Prop 8 was unconstitutional ?

Bender said...

If they have grounds to dismiss the appeal on the matter of the appellant's standing to take over when the state refused to defend the law, then they have grounds to dismiss the entire case ab initio - dismissing the plaintiffs' complaint, thus upholding the law - on the grounds of a lack of case or controversy, given that both plaintiffs and the state defendant are on the same side.

Mark O said...

But what of the Dred Pirate Roberts. Will he have a theory unknown by mere mortals? He has to show he is the smartest man in the room. Ah, yes. It's a tax.

Jay said...

"There is no federal constitutional right to same-sex marriage."


--Elena Kagan, Feb 10, 2009

edutcher said...
This comment has been removed by the author.
edutcher said...

Mark O said...

But what of the Dred Pirate Roberts. Will he have a theory unknown by mere mortals? He has to show he is the smartest man in the room. Ah, yes. It's a tax.

He also wants to get invited to all the cool parties and get a nice writeup in the WaPo, too.

Shouting Thomas said...

Althouse, you are on the "winning" side here. I understand that this is very important to you.

You are, however, on the "wrong" side.

All issues are now "bigot" issues to the left. Here's a link to an event recently held in Woodstock.

The event is an anti-fracking rally and the title for the evening is "We Shall Not Be Moved." And, of course, the program is all black spirituals from the civil rights movement.

Any opposition to any leftist agenda is now "bigotry." You're going to "win," alright, but you're entirely on the "wrong" side.

I wonder how long it will take you to figure this out. You're cautious and strategic. I'm not, so I can see where this is going now. Apparently, it's going to take you a while.

You're on the side of tyranny.

John said...

Drudge had this this morning:

"SAN FRANCISCO--Jean Podrasky, 48, a lesbian who wants to marry her partner, will be at Tuesday’s U.S. Supreme Court hearing on Proposition 8 in seating reserved for family members and guests of Chief Justice John G. Roberts Jr."

(Lifted from the LA Times)

Which immediately reminded me of this scene from the Godfather:

http://www.youtube.com/watch?v=WJI9vpKRP5I

In the scene Frank Pantegelli changes his previous sworn testimony when his brother from Sicily makes a surprise appearance in the courtroom audience.

Did anyone else think this way or do I just have a twisted mind?

Well, I do have a twisted mind but still...

John Henry

Scrooge said...

The Court will eventually strike down SSM bans. Everyone knows it. I don't see them handing down a Bowers type decision which they have to apologize for in a few years. A decision on standing is the right way to go if they aren't ready to do their jobs yet.

Christopher said...

SCOTUSblog post-tweeting analysis.

Bender said...

You can't ban something that cannot logically exist by its very nature. And recognizing that it does not exist is not the same as banning it.

Lem said...

Chief Justice Roberts: “It is not our job to protect the people from the consequences of their political choices”

Palladian said...

I just wish it was over one way or another so I don't have to hear Shouting Thomas, Jay, et al whine about it any longer.

John said...

This Godfather clip is also probably apropos:

http://www.youtube.com/watch?v=gpztPyZ5TH0

Or if you prefer Kramer's reading of the line:

http://www.youtube.com/watch?v=LSo7bWWuavg

John Henry

Shouting Thomas said...

I am quite effective, Palladian. Always have been.

This "bigotry" strategy that now consumes the left is absolute corruption.

The danger ahead is far great than you can imagine.

creeley23 said...

After Roberts' Obamacare decision I understand that the Supreme Court will usually find a way to ratify the liberal elite agenda and continue extending the power of government.

Reason is just a tool for achieving this goal and reasons will always be found.

Short of a serious from-the-bottom-up Tea Party revolution, I don't see how this stops.

The Drill SGT said...

Althouse,

Changing subjects slightly. Since you teach in Wisconsin, which, like California, has a Constitution that supports the "progressive" (in the old school meaning of empowering the people to make law against the wishes of their elected masters) voter initiative process. Ignoring the subject matter, on whose position you have made yourself clear.

Is it appropriate for the courts and the state executive to thwart the will of the people as recorded by initiatives?

Mitchell the Bat said...

In all fairness, it's not like Justice Kennedy gets paid all that much money.

Methadras said...

I have a serious problem with people who vote on something only to have the butthurt sue to overturn that vote. They did it with Prop. 187, they also tried to do it with The Cross on Mount Soledad, and now Prop. 8. What is the point in voting on a state initiative or proposition when you know you that the opposing side already have legal briefs typed up and waiting to file if the outcome doesn't go their way?

edutcher said...

creeley23 said...

After Roberts' Obamacare decision I understand that the Supreme Court will usually find a way to ratify the liberal elite agenda and continue extending the power of government.

Roberts was picked by Dubya because he was a Big Government Conservative. Apparently, that means if the Feds enact it, he'll support it.

Shouting Thomas said...

What is the point in voting on a state initiative or proposition when you know you that the opposing side already have legal briefs typed up and waiting to file if the outcome doesn't go their way?

The "bigot" strategy of the left makes this the default outcome.

The allegations of "bigotry" cannot be answered. Once the opposition is defined, essentially, as evil witches, the issue is decided.

Dante said...

Now that's a pretty cool trick. I thought vacating the ruling would leave prop 8 intact, you know, the will of the people, the democratic process of the state of California.

But nooo. SSMers will use whatever means they can to push their will on people, including rallying at anti-SSMers businesses, etc., to shut them down. It's pretty disgusting.

Now that strategy to me is morally incomprehensible.

Shouting Thomas said...

But nooo. SSMers will use whatever means they can to push their will on people, including rallying at anti-SSMers businesses, etc., to shut them down. It's pretty disgusting.

Even the SSMers don't really understand what is happening here.

The "bigotry" business renders the people powerless and confers all power on bureaucratic and governmental authority.

We've got a serious problem. The SSMers don't realize it yet, but they're going to be ground under by this strategy, too.

Mark O said...

Tell me, though, will the discrimination and bigotry toward polygamy continue?

Icepick said...

Who cares? The law doesn't mean anything and culture means nothing.

There's no meaning in anything anymore, so who cares if Kennedy makes SSM legal by actually doing his job or by failing to do his job?

Strelnikov said...

Gee, I hope the tea leaf readers at the argument are as accurate as they were during the Obamacare hearing...

chickelit said...

Scrooge said...
The Court will eventually strike down SSM bans. Everyone knows it. I don't see them handing down a Bowers type decision which they have to apologize for in a few years. A decision on standing is the right way to go if they aren't ready to do their jobs yet.

Sounds like Scrooge had a visit from a trinity of spirits representing the past, present and future of marriage.

Matthew Sablan said...

On the ACA: Most people said that it would work, as a tax. But, since there wasn't a substantial discussion about it as a tax, most people assumed it wouldn't even be considered. Not only that, but we were promised that it was not a tax by everyone from the president on down. So, you can see why there was confusion.

rhhardin said...

Divided justices might be a cannibalism recipe, like deviled eggs.

Pogo said...

Shut up, they explained.

Shouting Thomas said...

Shut up, they explained.

Shut up, you fucking bigots they explained!

Jane said...

The notion that the will of the people can be overruled because an activist court finds a bizarre interpretation and the current executive refuses to defend the law, really means that the people have no redress. Just awful.

There's enormous pressure to find a "right" to marry. If the Court doesn't cooperate, will their decision be accepted?

And what happens 10 - 20 - 30 years out, when marriage is just a way to get pubic recognition and government benefits, nothing more? Exactly how high will the % of births to unmarried women climb? Will a pregnancy within marriage be a mere coincidence?

Shouting Thomas said...

And what happens 10 - 20 - 30 years out, when marriage is just a way to get pubic recognition and government benefits, nothing more?

You're not seeing the larger picture, Jane.

All issues are now "bigotry" issues.

All right to redress has been effectively destroyed.

SteveR said...

Another Tweet problem. Do we really know what happened? WTF? OMG? YMMV! LOL STFU

#SCOTUS #SSM @SCOTUSBLOG

Real American said...

"For the more liberal members of the Court, there was no clarity on how broadly they would rule."

yeah, right! The leftists see no limits to their power. They'd order everyone in America to be gay if they could.

Scrooge said...

All issues are not "bigotry issues", Shouting Thomas, but this one is.

mtrobertsattorney said...

If J. Kennedy is concerned about the Court hearing this case, he will not be inclined to base his decision on standing--this would have the effect of leaving the district court's decision striking down Proposition 8 intact.

More likely, he will be comfortable with decision holding there was no federal juristiction for this case in the first place because it raises a political question. This would mean that the last ruling in the case by the state supreme court stands. (I believe that ruling upheld Proposition 8.)

mtrobertsattorney said...

If J. Kennedy is concerned about the Court hearing this case, he will not be inclined to base his decision on standing--this would have the effect of leaving the district court's decision striking down Proposition 8 intact.

More likely, he will be comfortable with decision holding there was no federal juristiction for this case in the first place because it raises a political question. This would mean that the last ruling in the case by the state supreme court stands. (I believe that ruling upheld Proposition 8.)

Shouting Thomas said...

All issues are not "bigotry issues", Shouting Thomas, but this one is.

That's the indoctrination.

The indoctrination is a lie.

This crap is producing an avalanche of lies, the result of a couple of decades of fierce indoctrination.

It's time for sensible people to start asking why the authorities are forcing this indoctrination in lies on us.

Bender said...

Roberts touches on an important point -- with civil unions allowed in California, where same-sex couples enjoy the same rights as married people, where is the substantive injury?

Dismissal on lack of injury grounds is possible here too.

gerry said...

Tell me, though, will the discrimination and bigotry toward polygamy continue?

And what about all that hateful hatred of pedophiles? ANd for proponents and pratitioners of bestiality? Let's end all the governmental intrusion into what are really private matters and lifestyle choices!

The slippery slope...

Dante said...

Tell me, though, will the discrimination and bigotry toward polygamy continue?

Of course. It sounds too much fun for guys. I suspect this one will wait for the next generation.

Leftists will find their next victim class to advocate for. Probably Hispanics soon. You know, the ones we stole the land from. It's tricky, as blacks might not like their victim status being subordinated to brown people.

Inga said...

Didn't Justice Kennedy speak of the injury to the children of gay couples this morning?

Bender said...

Where is the legal injury to either the couples or the children in a civil union?
Maybe their feelings are hurt by not having the public officially apply the marriage label to them, but feelings are not a legal injury when every right and privilege is enjoyed by them.

Fritz said...

Tell me, though, will the discrimination and bigotry toward polygamy continue?

Of course. It sounds too much fun for guys. I suspect this one will wait for the next generation.


My guess is it comes right after gay marriage. Around the world and down through history it has a lot more behind it than gay marriage.

Somehow, though, they'll have to find a way to legalize it for hippies and Muslims and forbid it to Mormons and other fundies. That's gonna an amusing argument.

Jay said...

Bender said...
Roberts touches on an important point -- with civil unions allowed in California, where same-sex couples enjoy the same rights as married people, where is the substantive injury?


There isn't any injury, at all.

But you silly wingnutty bigots need stop asking these questions and let your educated, moral bettors like Ann, tell you how to get on the right side of this issue.

So shut up, already.

Inga said...

I believe Justice Kennedy used the words "immediate legal injury". I'm curious to hear him expound on this.

Andy R. said...

JUSTICE SCALIA: When did it become unconstitutional to ban same-sex marriage? Was it 1791? 1868?

TED OLSON: When did it become unconstitutional to ban interracial marriage?

JUSTICE SCALIA: Don’t try to answer my question with your own question.

Guimo said...

Roger Taney Roberts will find a way to fuck it up.

SteveR said...

Thanks mtrobertsattorney@12:37, that's a better explanation than anything else. How come when one sees two plus two does it require thirty interpretations to come up with five.

Dante said...

Jay Sez:

There isn't any injury, at all.

There absolutely is, to the taxpayer. Why should able bodied childless gays get the same perks and benefits as those who raise the next unit of productivity/taxpayers?

It's a huge hit to the economics of a household to raise children, who will pay off the profligate waste of the leftists. You know, the ones advocating for benefits they don't deserve.

Paul Zrimsek said...

A decision on standing is the right way to go if they aren't ready to do their jobs yet.

Well, it's the right way to go if you regard the whole subject of standing as meaningless bullshit, which might or might not be something we want judges believing. Barring that, it's only the right way to go if appellants actually do lack standing.

damikesc said...

My guess is it comes right after gay marriage. Around the world and down through history it has a lot more behind it than gay marriage.

TV shows are already out there trying to normalize it.

Advocates kept saying "You're making a slippery slope" argument, ignoring that their justifications work for a lot of really unpopular things as well.

And low info voters --- you know, morons --- will buy into the next movement to fundamentally change human civilization and not spend a moment wondering about the possible problems.

And when the problems occur --- well, it certainly wasn't any asinine choices they made before.

gerry said...

it's the right way to go if you regard the whole subject of standing as meaningless bullshit

The meaning of "marriage" is meaningless bullshit. "Standing" doesn't deserve any better consideration.

Jay said...

Dante said...

There absolutely is, to the taxpayer. Why should able bodied childless gays get the same perks and benefits as those who raise the next unit of productivity/taxpayers?


Good point.

It reminds me that I saw a business reporter on CNN yesterday excitedly informing viewers that gay couples are losing $8,000 per year in tax benefits because they can't be married.

Isn't that swell?

damikesc said...

All issues are not "bigotry issues", Shouting Thomas, but this one is.

So, if polygamists come forward and say they want "rights", would denying those "rights" be bigotry? If not, why not?

Ditto incestual couples.

I ask you this because your preference leads in a direct path to that outcome.

ALL laws are arbitrary in nature. If you wish to alter those, you don't remotely have the power to determine how that will turn out.

damikesc said...

It reminds me that I saw a business reporter on CNN yesterday excitedly informing viewers that gay couples are losing $8,000 per year in tax benefits because they can't be married.

Aren't gay couples, overwhelmingly, rather rich and successful?

Geoff Matthews said...

What science are we waiting for? We already know that SS-relationships are different, in that monogamy isn't expected:

http://www.nytimes.com/2010/01/29/us/29sfmetro.html?_r=0

http://www.queerty.com/study-monogamish-gay-couples-happier-than-single-or-monogamous-guys-20130208/

http://winteryknight.wordpress.com/2012/06/18/are-gay-relationships-typically-stable-and-monogamous/

If this is encouraged as the norm, what wide-ranging effect could this have?

Jay said...

damikesc said...
Aren't gay couples, overwhelmingly, rather rich and successful?


Probably, but who cares? All that "fair share" bullshit goes out the window when you're like ending bigotry and stuff, man!

AJ Lynch said...

Don't trust CNN when its top business reporter, Ali Velshi, majored in religion in college.

edutcher said...

Hmmm, the DHS ammo stockpile just hit 2 BILLION rounds and we're worried about this?

When Constitutional rights (the real ones) becomes a contact sport, I told you so.

Dante said...

Isn't that swell?

$8,000 a year? You think that comes anywhere near to the costs of raising a kid?

Then there is trying to raise them right, which in my opinion, requires a stay at home caregiver. Preferably female, as they are superior, in my view, with seeing things from the child's perspective and nurturing, breast feeding.

AJ Lynch said...

A gay person is allowed to claim a minor child as a dependent on their tax return so this tax issue is "look squirrel" to some degree.

Jay said...

Dante said...

$8,000 a year? You think that comes anywhere near to the costs of raising a kid?


No. But I should clarify: the reporter was saying "average gay couple"

Meaning those without kids.

President-Mom-Jeans said...

They are going to punt on standing. We will be going through this bullshit again in 3 years or so.

But Althouse gets several more years of posts and pageviews.

Dante said...

No. But I should clarify: the reporter was saying "average gay couple"

Mean? Median? Mode?

In any event, it doesn't sound like that much money per year. Say a 2 million gays elect to get married, that's only $8B a year to pay of gays, or $80B over 10 years. Of course, I think it is actually much more than that, for instance the woman suing against DOMA wants a $363,000 estate tax refund, and then there is health care.

Naturally, every guy ought to be able to marry a young Nancy maid while old, providing survivor benefits.

Maybe Ann is on to something. Let's get beyond this. Conservatives, if there are any left, can hold the line on polygamy (what's wrong with that?) and pedophilia. Of course, there is partial birth abortion, which I find quit horrifying, but Barbara Boxer thinks its OK.

Oso Negro said...

Dante, there is no line to hold. It is impossible to justify sexual mores starting from first principles. We are just drawing arbitrary lines on the great continuum of human sexuality. Despite our hostess' claims, there will be no way to prove the claim of harm on polygamy, and I doubt that pederasty will be far behind. Is there social science to prove that buggering children would cause lasting them harm in a non-heteronormative environment? I doubt it sincerely. And what if they were buggered by caring, rich gay couples who lifted them out of the poverty of, say, a Rio slum? You may yet see a Catamite to Citizen program for the economically disadvantaged.

EMD said...

Sadly, the tax code is used as a political cudgel on both sides. Predictably, too.

Tom said...

My hope here is that it's left to the states to define marriage. One, the Constitution never affirms this right nor give the federal government the power to define marriage. Second, I hope that DOMA is overturned on federalism grounds for the same reasons. The people of a state get to define marriage both within the legislature, public referendum and issue, and finally, in accordance with the state's constitution. I believe this concept applies just as much to polygamy as it does to same-sex marriage. This also applies to every state but Utah because a condition of Utah's entry into statehood was the prohibition of polygamy. As a libertarian, this makes sense and as a conservative, this makes sense.

Fritz said...

"Free Utah!"

dreams said...

"We grovel at their feet and beg them to validate our views. We act like their “rulings” can somehow re-calibrate the Moral Compass, alter metaphysical realities, turn right wrong and wrong right. When it comes to this issue or any other, whatever you believe the truth to be, you ought to still believe it regardless of what the Oracles in Black have to say. Do I need to run down a list of examples of the “Supreme Court” making deranged and psychotic decisions? If something is wrong, it’s still wrong even if the Supreme court calls it right. If something is right, it’s still right even if the Supreme Court calls it wrong."

http://themattwalshblog.com/

Jay said...

that's only $8B a year to pay of gays, or $80B over 10 years

That's $80 billion not spent on education and roads and bridges!

I say be opposed to gay marriage for the children.

And all those shovel ready jobs.

Marshal said...

It reminds me that I saw a business reporter on CNN yesterday excitedly informing viewers that gay couples are losing $8,000 per year in tax benefits because they can't be married.

This is almost certainly false. A married couple with similar incomes pays more in tax than two similar singles cohabitating, and the income difference has to be extraordinary before the effects reverse. Since gay couples are more often dual earners more are going to face a tax penalty than a benefit.

It's extremely likely that reporter was fed the specific case of a stay at home partner for the comparison and was too ignorant to understand how unlikely that is.

Lem said...

I think its interesting that the Supremes chose not to have live audio... I seem to recall one time where they deemed the issue so "important" that they chose to allow live audio only.

They don't think this is a big deal.

Emil Blatz said...

If he joined them in the end, we'd have no doubt which way he was going.

Ann Althouse said...

"Is it appropriate for the courts and the state executive to thwart the will of the people as recorded by initiatives?"

First, I think initiatives are unconstitutional -- a violation of the Guarantee Clause. Second, I think a politically accountable decision maker should make the call about when to appeal and what legal arguments to press. Third, the state executive has a duty to follow the Constitution.

Those are three reasons to answer yes.

I'm a bit disturbed by the disarray here, but we went down the wrong path when we accepted referenda.

SGT Ted said...

The only benefit to tax status of marriage is if there is only one earner and one is listed as a dependent. Dual earners, most gay couples, will get hammered on taxes.