Patterico's Pontifications



Filed under: General — Patterico @ 12:53 pm

1. When the issue of gay marriage comes before the Supreme Court, Anthony Kennedy will vote to reverse Judge Walker’s decision.

2. If the Ninth Circuit denies the emergency motion for a stay (one has been filed today), Anthony Kennedy will issue a stay. He will then (or instead) refer the matter to the full Court, which will vote to continue the stay by a 5-4 vote.

I could be wrong — and if I am, forget I said it.

But if I’m right, you read it here first!

Thanks to red for the link.

UPDATE: Prediction the next:

3. The Ninth Circuit panel will be Wardlaw, Fischer, and Berzon — just as with the interlocutory appeal regarding the televising of the trial. Meaning they won’t reinstate the stay. Which brings us right back to prediction #2.

By the way, I added a parenthetical to prediction #2. (The words “or instead.”) Kennedy may refer the matter to the Court right off the bat without ruling on his own.

64 Responses to “Predictions”

  1. 1. When the issue of gay marriage comes before the Supreme Court, Anthony Kennedy will vote to reverse Judge Walker’s decision.

    You drinking at work, Pat?

    Allahpundit (fd2bf9)

  2. Well, if we are going to predict, let me quote from a brilliant scholar and legal geek: me.

    I won’t quote all of this, but I trace Kennedy’s behavior in four different cases and show how there is no unifying principle of interpretation except one. Here’s a few key passages:

    > But Kennedy’s actions are more consistent about is another value, which is preserving the institution of the Supreme Court. One thing you see in Kennedy v. Louisiana and Lawrence v. Texas is that he is only willing to do blatant activism when he believes that the people won’t really mind very much. So in Kennedy v. Louisiana he makes much out of evidence that the gestalt of the American people do not support giving the death penalty to child rapists. Likewise, by the time Lawrence came up, support for gay rights was significant, many states had legalized gay sex and prosecutions were rare. So while some principled persons would be outraged the vast majority of the American people aren’t terribly interested in enforcing anti-sodomy laws in the first place. Meanwhile, only a few states had enacted death penalty provisions comparable to Louisiana. Now I think in the case of Kennedy v. Louisiana, (Justice) Kennedy did misunderstand the will of the American people, and I do think that case reduced the confidence the public had in the Supreme Court, to the extent they were aware at all of the decision, but I can see Kennedy convincing himself: beforehand that the people won’t really get very upset about this.

    > And when you think about it Casey was about institutional protection, too. Kennedy and others surely thought that if the court overturned Roe under this sustained pressure it would be taken as a signal that the law depended more on the makeup of the Supreme Court than the actual law itself. One of the major sources of the Supreme Court’s prestige is the belief that it is above politics—that the judges are just umpires, to use Roberts’ vivid metaphor. Caving on Roe would be seen as compromising on that, at least in the eyes of the triumvirate of Kennedy, Souter and O’Connor.

    > Even Heller v. Dist. of Columbia might be seen as decision protecting the Supreme Court as an institution. First a persistent majority of the American people has felt pretty much the way the Supreme Court has ruled: that the second amendment protects an individual right to bear arms. So to a large portion of the American people a decision against gun rights would have been seen as illegitimate. Further it would have made conservatives feel like the game was rigged against them…. The Supreme Court protected a right to privacy that wasn’t written there at all, come hell or high water, but couldn’t be bothered to vindicate a right that was plainly written. Among conservatives this contradiction significantly delegitimized the court. And of course people understand that if you want to protect an institution, you have to get a large amount of “buy in.” But conservatives were increasingly not buying in, because they felt that the Supreme Court was treating the constitution as a way to shove rules they didn’t want down their throat.

    > So by giving the pro-gun-rights side the majority in Heller, the Supreme Court greatly increased its prestige among conservatives and made it easier for conservatives to swallow liberal decisions they don’t like.

    > …

    > So with that in mind, we arrive at proposition 8. The fact is strong majorities of Americans oppose gay marriage. Even larger majorities opposed judicially imposed gay marriage. Just as few states executed child rapists bore on (Justice) Kennedy’s analysis in Kennedy v. Louisiana, the fact that few states recognized full gay marriage will bear on his mind here. And consider how dramatically the unpopularity of gay marriage has been demonstrated in this particular case. When the California Supreme Court first held that the California constitution demanded that there be gay marriage, it was assumed that this was the law from then on. But then the people rose up and struck down gay marriage—and in the midst of a Democratic “wave” election, no less. Let me emphasize this: even in California the people didn’t want gay marriage.

    > …

    > For that reason, for the sheer disdain he would bring down on the Supreme Court, I do not believe he will vote to overturn Proposition 8. A more likely possibility is that Kenney will require states to create civil unions or domestic partnerships. Because after all, the majority of Americans also favor doing that. I could even imagine him gradually chipping away at it until those civil unions or domestic partnerships are marriages in all but name, by requiring them to have identical rights and obligations.

    Aaron Worthing (A.W.) (e7d72e)

  3. It’s a bold prediction. Remember I made it, if it comes true.

    Patterico (cf4181)

  4. Pat, hey i was first to say kennedy won’t uphold walker.

    but honestly i have enough respect for the ninth circuit to think they will be the grown ups and handle this for them. the case might ultimately go to the Sup. Ct., but i think the 9th circuit will do the right thing on their level.

    By “the right thing” i mean vacate this stupid decision and at least privately tell the judge he better disqualify himself.

    Aaron Worthing (A.W.) (e7d72e)

  5. Don’t know if I’d bet on which way Kennedy would vote. However, I’m thinking that the Ninth Circuit is fairly likely to overturn. Even if the fairly liberal panel that handled the interlocutory stuff earlier in this case handles the merits appeal, I think Walker went overboard on this case and did the anti-Prop 8 people no favors.

    SPQR (26be8b)

  6. Since we’re all going on the record…

    ON THE STAY: I agree with Patterico.


    (1) Ninth Circuit allows Prop 8 proponents to have provisional standing, arguments on standing and merits of the case are made, and Ninth Circuit ultimately rules Prop 8 proponents did not have standing in the first place.

    (2) Case goes to SCOTUS, who overturns Ninth Circuit on the standing issue, 6-3.

    (3) Case gets remanded. Ninth Circuit affirms Judge Walker on the merits.

    (4) “Perry II” goes to SCOTUS. Ninth Circuit gets affirmed 5-4, in the summer of 2012.

    (5) Same-sex marriage becomes the 2012 election issue.

    Kman (d25c82)

  7. Aaron, those are all very persuasive arguments, but they seem to leave one thing out. To what extent is Kennedy’s decision influenced by the opinion of his peers? It wasn’t just a majority of people or states that had rejected the death penalty for child rapists, it was most of his peers – the people he admires. Does he have a history of going against that grain? If so, then Prop 8 has a chance.

    If not…

    Gesundheit (cfa313)

  8. Btw, Prof. Vikram Amar points out that if the prop 8 supporters don’t have standing for appeal then the appellate court might find there was never a case or controvery to begin with:

    > And to add another twist, at least one constitutional-law scholar in California is suggesting that by trumpeting the issue of standing, Walker has opened a hornet’s nest he may have been better off leaving undisturbed. “If the proponents don’t have standing to appeal, then it’s entirely plausible that the courts will rule that they did not properly have standing to go to trial,” Vikram Amar, a law professor at the University of California at Davis, told TIME Thursday evening. “This is an issue he glossed over when he allowed them to intervene in the trial.”

    > Amar says that if the Ninth Circuit agrees with Walker that the proponents don’t have standing to appeal, the judges may well decide they shouldn’t have been allowed to intervene in the case at all. If they do, he says, they could decide to vacate the trial entirely, sending it back to Walker to start over. The governor and attorney general would be unlikely to intervene — but on the other hand, come November, voters will choose new candidates for both of those offices.
    In that event, what happens next is anybody’s guess. “We’re in uncharted waters here,” Amar told TIME.

    Read more:,8599,2010377,00.html?xid=rss-topstories&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+time%2Ftopstories+%28TIME%3A+Top+Stories%29#ixzz0wWHiw0Gv

    I actually know his brother, Akhil. Akhil is kind of an ass but he is no dummy. I won’t impute his personality flaws to his brother, but generally intelligence does run in families, so i am willing to bet Vikram is sharp too.

    Aaron Worthing (A.W.) (e7d72e)

  9. I’m not sure anyone is qualified to impute motives — positively or negatively — to Kennedy’s “behavior”. Nobody is inside his head.

    It might simply be that he believes that gun ownership is an individual right, so that he came down that way in Heller. He might also believe that anti-sodomy laws are invidiously discriminatory, so he came down that way in Lawrence. Holding those beliefs isn’t contradictory, as they cover separate constitutional issues.

    So I’m not so quick to assume that he has had, or will have, other non-legal considerations going on whenever he approaches a constitutional and/or controversial case — i.e., popular opinion, the “prestige” of the court, etc.

    Kman (d25c82)

  10. Ann Althouse says she thinks Mr. Justice Kennedy will affirm.

    Ann Althouse is very smart and pretty plus she knows Mr. Instapundit personally.

    happyfeet (71f55e)

  11. Gesun

    > To what extent is Kennedy’s decision influenced by the opinion of his peers? It wasn’t just a majority of people or states that had rejected the death penalty for child rapists, it was most of his peers – the people he admires.

    Well, it depends on what you mean by peers. My whole post was originally written in response to a column by James Taranto who assumed as I do that there will be four justices in favor and four opposed. This has been happening a lot recently.

    I don’t think that there is any chance that the supreme court will find in favor of gays without Kennedy, at least as long as there are no conservatives stepping down in the near future. There is no way in hell that Roberts, Alito, Scalia or Thomas find a federal right to gay marriage. Its just not happening. One might wonder rationally if the liberal bloc might crack on this, if only because of the sheer weight of public opinion against them.

    If you mean peers to be law professors, law clerks, people he hangs out with, i would say their best chance of convincing him is to try to convince him that the public really supports gay marriage.

    But I think he won’t forget: even in California, they rejected it. It was rightfully considered a stunning development when it happened and he won’t forget it soon.

    Aaron Worthing (A.W.) (e7d72e)

  12. Gesun

    let me also add, i am only giving you what i wrote. i didn’t quote where i point out just how contradictory his decisions are. in Heller he pretends to care about original intent. in Kennedy v. Louisiana, he could give two sh-ts about original intent. in Casey precedent is sacrosanct. in Lawrence, suddenly its not so big a deal for the court to change its mind.

    Aaron Worthing (A.W.) (e7d72e)

  13. #7 — If Republicans run on same sex marriage in 2012 they are god damn morons.

    Talk about issues no one is really interested in fight over.

    Gay marriage and abortion are issues you deal with in power and do it as quiet as possible then position the opposition as crazy.

    When you put these issues front and center a whole of variety of stupidity comes out from the Right which makes them look foolish with many Center-Right Voters.

    But hey, I guess Fiscal Discipline, Government Corruption and Union Vote buying plus Foreign Policy is too tough to discuss.

    HeavenSent (ff0596)

  14. HeavenSent:

    If Republicans run on same sex marriage in 2012 they are god damn morons.

    I guess sometimes a candidate might want to appeal to the far right at the risk of putting off the center-right, if he/she thinks there are more votes there. Bush did it during the 2004 campaign, invoking DOMA as the race got tight.

    Kman (d25c82)

  15. > If Republicans run on same sex marriage in 2012 they are god damn morons.

    I’d prefer to leave these issues aside, but republicans are winning on that issue.

    Aaron Worthing (A.W.) (e7d72e)

  16. A.w. @ 9: Look, I know Amar, and I am a constitutional lawyer too, and I have a pretty good idea of where he has to be coming from on this notion (I expect he will publish his full thoughts on own blog — this comment biz is also business, after all — which should confirm this), and it is a pretty damned tenuous spot.

    The subject is standing. The question is whether a defendant intervenor (or DI) is, by receiving the permission of the court to intervene, granted full standing. The answer is easy: no.

    What was glossed over at the outset of this case (I do not agree with that characterization; it is more than glib.) is the PRESS COVERAGE of the decision by the trial judge to grant the DIs pretty much — not totally, but close to — the rights of the defendants who actually had standing but were declined to use any of those rights, that is, the Governor and the State AG on behalf of the State of California. It the State officials had chosen to exercise those rights, then the trial judge could well have curtailed the rights of the DIs.

    Such curtailment happens all the time with constitutional issues — well, not all the time, but it is quite usual, and especially so on bigger causes. Most intervenors will not even apply for standing until appeal.

    The distinction that is drawing attention here arises not from whether there will be an appeal — there are ways for the DIs to piggyback a nominal appeal off the rights they were granted at the trial level, and as much as I doubt the trial team for the DIs were anything like the brightest bulbs on the attorney tree, it is really not hard to find and get help on this — but whether the DIs have standing to seek a stay of the effect of the orders from trial.

    Part of what is complicating the idea of seeking a stay is that the nominal defendants, the governor and the AG, if they were actively involved, themselves would have trouble satisfying the standard for a stay — to put it at its simplest, identifying the irretrievable harm. As the trial judge noted, this happened before, and those same-sex marriages not only did not bring us to End Times, there is actually no evidence whatsoever (before him, but I think also conceptually) that any harm came of those marriages being still good.

    What Vikram seems to be saying is that he is not confident these DIs will inevitably get standing to appeal — which is theoretically true, but only if they fail to exploit the trial rulings that empowered their participation or the 9th Circuit decides not to help them (such as how the SCOTUS helped the Citizens United crew back into a re-hearing). That is, it is CONCEIVABLE the DIs will not receive standing even to appeal.

    But that would not invalidate the trial opinion, or the rulings from trial. In order for the DIs to even TRY to exploit the sort of anomaly Vikram seems to be implying, they would have to be able to point to their having taken a political questions stance at trial, to the effect that the case ought to have been dismissed at the outset, as beyond the jurisdiction of the court to hear. And perhaps even renounce their own participation in the trial, as coerced — a pretty odd situation for an intervenor (Perhaps they should see a certain lady part-time dentist for creative counseling on this.).

    shooter (32dc25)

  17. makes them look foolish with many Center-Right Voters.

    Those are all the squishy voters who are a major reason California has become so leftwing over the past 20 years and why voters throughout America who should have known better threw caution (and common sense) to the wind and punched the chad or pulled the lever for Obama.

    This phenomenon of touchy-feely namby-pambyism has becoming increasingly pervasive throughout modern Western society and where it will lead is anyone’s guess. Particularly when it encounters cross winds from places like amoral China and Russia, the Islamo-fascist-ized Middle East, and dysfunctional Third-World-ize Venezuela, Mexico, etc.

    Mark (411533)

  18. KMan, your timetable is way off, I think.

    It’s the summer of 2010. Briefs are due on the merits in December. It’s not uncommon for the 9th to take a year to render a decision after arguments.

    So, if you’re right, this places a ruling on standing in the spring of 2012, overturned in 2012-2013 term, with reaffirmation on the merits in the spring of 2014.

    aphrael (e0cdc9)

  19. Protect Marriage’s motion for a stay at the ninth circuit is here.

    aphrael (e0cdc9)

  20. aph, we have the motion.

    But greatly appreciated my friend.

    Aaron Worthing (A.W.) (f97997)

  21. “If the Republicans run on gay marriage in 2012, they are morons…”

    The abiding issue is not gay marriage in itself; the larger issue is judicial paternalism, and the smug imperial tyranny of the political class.

    I don’t know who first began loudly using the phrase “political class” recently as a meme, but it’s a highly vivid and effective one, and the GOP should ride it like Gandalf on Shadowfax.

    Forget for a moment your personal stance on the instance of SSM, whatever it may be. What the GOP should run against is, in essence, the malignant growth of a standing political culture which holds that the people are in effect not sovereign; and what’s more, they openly smirk about it too.

    The Walker decision is merely a particular which illustrates the universal.

    d. in c. (1f84ee)

  22. The moderate position on same-sex unions is that states should set up the institution of civil unions, which would include civil marriage as a subset, with recognized same-sex unions and possibly polygamous unions as other subsets. States should not discriminate between two types of civil unions, or discriminate against people on the basis of the type of civil union of that they are part, without a good reason.

    So, a moderate ruling would be that the right to marriage, understood to be a right to marry someone of the same sex, is part of a broader right to set up a household and raise a family. (This issue may actually come up if In the Matter of the Marriage of J.B. and H.B. or Bonilla v. Hurst reaches the Supreme Court.)

    Michael Ejercito (249c90)

  23. #

    > If Republicans run on same sex marriage in 2012 they are god damn morons.

    I’d prefer to leave these issues aside, but republicans are winning on that issue.

    Comment by Aaron Worthing (A.W.) — 8/13/2010 @ 2:20 pm

    They aren’t winning on the issue. Public opinion is moving toward acceptance of gay marriage. Incrementally, but moving that direction. However, even if they are winning, this is a distraction from real issues that need to be solved.

    The social issues, all of them, need to move to the back of the bus and sit down until we regain control of spending, debt, etc. If that means gay marriage happens because we had to focus elsewhere, well maybe we’d have been better off to put more effort into taking care of our fiscal house in the last 15-20 years or so there was political capital to spend on social issues.

    Now we have no choice. We can survive with gay marriage. We can’t survive the mountain of debt.

    sookie (60809e)

  24. Who knows what the issue will be, in 2000 no one thought same sex marriage would rear it’s ugly
    head four years later, whichever mouthpiece of the
    Fenton media archipelago decides, whatever will be indefensible, but they will strive to make it look
    perfectly reasonable.

    ian cormac (2e065c)

  25. sookie is wise

    listen to sookie

    happyfeet (19c1da)

  26. Whatever, back in 2001, one never thought that those who would plan 100 9/11, like those at Gitmo, could ever be considered respectable even victims, but the Levick Group did it, they savaged our military and painted the lowest of the low, including one of those who Spann in cold blood into a victim, an innocent shepherd, despite
    a hundred years of precedent

    Around that same time, the notion that they would tax carbon, the core of our entire industrial civilization seemed ludicrous, that has been halted for now, the idea one would shut down our only real spare source of oil and gas, they would lock you up if you suggested that even 10 years ago

    ian cormac (2e065c)

  27. The social issues, all of them, need to move to the back of the bus and sit down until we regain control of spending, debt, etc.

    Yes, lets ignore such trivia as who gets to run the country and focus on what is really important – spending!

    I don’t know why this is so difficult for you to grasp, but the reason why we can’t get control of spending is the same damn reason why we are having “gay marriage” rammed down out throat – because “we” are not in control of either one. Because “we” are not running the show.

    Seriously, how fucking stupid do you have to be not to get this?

    Of course, we both know that you’re not THAT stupid. You get it fine. But you cling the the demented fantasy that you can have a socially left-wing country which practices fiscal conservatism.

    It will never happen. Rivers will flow uphill and cats will flee from mice before a socially left-wing country worries about cutting spending.

    Subotai (34b9a5)

  28. We can’t survive the mountain of debt.

    Speak for yourself, stinky. I can survive it just fine.

    The USA may die from it, but I’m coming around to the view that the USA needs to have a fork stuck in it. It’s done. Life will go on without it, better in most cases.

    Subotai (34b9a5)

  29. Remember I made it, if it comes true.

    Made what?

    Gerald A (2b94cf)

  30. Many older Californians are most displeased by the actions of this judge, They are thoroughly pissed off that one judge – a homosexual judge – could overturn the will of The People. There is a feeling of futility as they see the moral decay all around them and the sense that the majority of the uninformed electorate would elect a farm animal to the governorship or the legislature, as long as the animal was Democrat.

    We must not take their votes for granted.

    ColonelHaiku (2deed7)

  31. I would like to agree with #1 (I do agree with 2 and 3), but I think Kennedy is such a whore to his Place In History(*) that he will do as he did in the Colorado and Texas cases by picking up the pen and writing a sweeping, textually-unbound decision embracing what Scalia calls the “sweet mystery of life” (and upholding Walker).

    If You’re right on #1, hurrah. I have no problem with a Justice making his OPPOSING policy view clear. For good examples, see Corrigan’s dissent in In Re Marriage Cases in 2008 and Thomas’s dissent in the Texas sodomy case (calling the TX law “silly”).

    Mitch (e40959)

  32. Sookie is confusing the popularity of a policy with whether or not the Constitution has put that policy beyond democratic debate.

    The GOP cannot lose if it says, “Some believe in gay marriage, and some don’t. We believe the Constitution doesn’t speak to the issue and thus leaves it to the states and the states’ voters. Liberals believe that somehow gay marriage was mandated in the 1870s by the same amendment meant to give freed slaves equal state rights. Which do you believe?”

    Mitch (e40959)

  33. We must not take their votes for granted.

    It’s very simple. Most Republicans can’t win without heavy support from social issues voters, but they can’t win with only those voters. The same thing with Tea Partiers. You’ve got to put the 2 together.

    Furthermore, most Tea Partiers who might support gay marriage are put off by courts run amok. They understand the issue of activist judges. If there’s some who would bolt the GOP when hearing about traditional marriage, there’s not enough for Pubbies to logically worry about them, compared to losing values voters.

    Gerald A (2b94cf)

  34. ohnoes.

    old people feeling feelings of futility

    maybe pet therapy will help? Or pudding?

    oh I know we can ban gay marriagings!

    that’ll perk the old bird up!

    happyfeet (19c1da)

  35. Most of them will live to piss on your grave, happyfrum.

    ColonelHaiku (2deed7)

  36. How’s that for a prediction!

    ColonelHaiku (2deed7)

  37. you have hard edges Mr. Colonel but I’ve seen harder

    happyfeet (19c1da)

  38. “maybe pet therapy will help? Or pudding?”

    Mr. Feets – I recommend jello. Jello molds if you have them. Old people love jello molds in my experience. No teef required.

    For the rabid SSM crowd, go wif Judy Garland. Can’t go wrong.

    daleyrocks (940075)

  39. that sounds grand Mr. daley

    that’s how old people talk – they like it when things sound “grand”

    happyfeet (19c1da)

  40. There is nothing wrong with the idea that focusing on fiscal matters is way more important than focusing on social issues. Mitch Daniels forwarded that idea, an idea I very much agree with, and Ryan’s Roadmap has similar focus. Dems would love love love love love to run on racism homphobia sexism etc … as opposed to focusing on their abysmal record on the economy.

    My prediction. kman and bart will remain mendoucheous. timmah will grace us with his hatey rants of hateful hate, and this issue will continue to be pushed until the leftists win just one time, at which point, they will declare this a solemn issue beyond discussion.

    JD (3dc31c)

  41. Patterico, I think you are right, and would add only this:

    (1) I think it’s almost certain that Kennedy will refer the stay application to the full Court rather than ruling on it himself, alone, as Circuit Justice.

    (2) I expect, per Chief Justice Roberts’ normal minimalism, the announcement of the ruling will be per curiam and without any written opinion; I will be very surprised if there is any written dissent from the ruling.

    (3) I think you’re right about the panel refusing to reinstate the stay, and I assume you’re assuming, as I do, that they’ll therefore eventually vote to affirm on the merits.

    (4) I also think you’re right about the SCOTUS vote count on the ultimate issue; but it’s not inconceivable to me that the Ninth Circuit en banc might intervene and do the right thing — as with the SVREP v. Shelley case in 2003, where the full Ninth Circuit en banc overturned an outrageous panel decision that would have blocked CA’s gubernatorial recall election — meaning that it’s entirely possible that the SCOTUS will end up simply denying cert.

    Only four votes are needed for the SCOTUS to grant a cert petition. (By contrast, it usually takes five votes to form a majority opinion and five votes to determine an outcome (affirm or reverse)). And there are, of course, four reliably liberal Justices who can be predicted to “find” a same-sex marriage right in the Constitution. But here’s why I think it might end up “cert denied” anyway:

    But if the Ninth Circuit (or more likely, the en banc Ninth Circuit) reverses the trial court, then whether they’d actually cast a vote in favor of cert would depend on (a) whether the four reliably liberal Justices think they have a shot at persuading Kennedy after full briefing and argument and deliberation, and/or (b) whether they want to go on record via dissent(s) now, rather than hunker down and hope for another liberal appointee before the SCOTUS makes a precedent-making decision. Actually, unless the district court’s decision is still standing when the case gets to the SCOTUS on the merits, then I think the smart strategic move for them would be not to vote for cert unless Kennedy has already shown unmistakable intentions (e.g., in the internal SCOTUS discussion on the stay) that he’s open to voting to affirm the trial court.

    (This presumes any of the four liberal Justices are smart and brave enough to act strategically instead of reflexively when it comes to advancing their agenda. Justice Stevens might have been that clever, but I’m not sure any of the four current hard-core liberal Justices could fade the heat if they passed up even an opportunity to fall on their swords so the netroots could have their orgy of remonstration against “those fascist Republican Justices.”)

    Beldar (6921f4)

  42. Sorry, I meant, of course, “fascist, rascist ReTHUGlican Justices.”

    (Also my paragraph that starts “But the Ninth Circuit” should just say “The Ninth Circuit. Sorry for the confusion.)

    Beldar (6921f4)

  43. The proper disposition of this matter would be for a summery reversal and remand to the district court to take a action consistent with SCOTUS’ decision in Baker.
    That would make the plaintiff’s losers in the district court and force them to take an appeal to the Ninth, and later seek cert with the SCOTUS, which SCOTUS could accept or not. I’m guessing they would decline and allow the issue to resolve itself in the political arena as it appears to be on the path to do.


    Shipwreckedcrew (c16274)

  44. And speaking of “going on record,” I wrote in your comments section on August 8, 2010, that

    for purposes of getting that fifth SCOTUS vote, presumably from Kennedy, this is a particularly bad case precisely because it is so emphatically and obviously un-democratic. I think Kennedy felt considerable empathy for gays facing jail time for having sex — so much empathy that it led him to ignore prior precedent and buy into Lawrence’s substantive due process bunk. Here, does his empathy lead him to side with California gays who are dissatisfied with state-approved near-equivalent domestic partnership rights? With them over seven [million] voters who’ve been told that their views and their votes don’t count?

    I think there is a substantial possibility, maybe a probability — and thus a very serious risk, from the viewpoint of SSM supporters — that the result will instead by a 5/4 decision SCOTUS against judicial imposition of same-sex marriage.

    So welcome to the limb.

    Beldar (6921f4)

  45. OMG. I’m not a good racist if I can’t spell it. (I was just trying so hard not to misspell “fascist”!)

    Beldar (6921f4)

  46. There is nothing wrong with the idea that focusing on fiscal matters is way more important than focusing on social issues.

    Other than it’s completely wrong, no.

    Subotai (34b9a5)

  47. Kennedy has a thread he pulls from time to time, regarding Liberty interests. He based PP v Casey on it, for example. Then again, he’s mellowed some since then, so I don’t know.

    But Walker’s decision resonates with Casey, so I don’t think I’d assume that Kennedy is a vote against.

    Kevin Murphy (5ae73e)

  48. BTW, the Republicans don’t need to run on this to benefit from it. They can (and should) focus on the economy and getting this crazy budget under control, and those that vote on social issues will still show up for them.

    Just like the economic Conservatives showed up for Bush.

    Kevin Murphy (5ae73e)

  49. Patterico should set up a standing thread on these sorts of bets, so we can keep track of his record on predictions; Patterintrade, except the bookie lacks the ability to hedge. Some of our avatars could get theoretically rich and convert those virtual riches into exerting virtual antidemocratic oligarchical power.

    shooter (32dc25)

  50. Now we have no choice. We can survive with gay marriage. We can’t survive the mountain of debt.

    I know there are some people who proudly describe themselves as fiscal conservatives and social liberals. But generally, most people who are liberal in the latter tend to be squishy or wishy-washy towards the former, certainly when dealing with the public sphere.

    Hell, even George W Bush, who was more or less of the right socially-culturally, was quite squishy about bloated budgets.

    Mark (411533)

  51. Isn’t it interesting Big Zero preaches to us about the need for tolerance and gives his whole-hearted support to the Ground Zero Mosque, but has no opinion on this issue?


    ColonelHaiku (2deed7)

  52. Public opinion is moving toward acceptance of gay marriage.

    Is that acceptance synonymous with opposition to the definition of marriage as one man and one woman? Some people may accept either definition.

    Do these polls separate the questions of whether or not marriage should be defined as between one man and one woman and whether or not the legal incidents of marriage should be available to other forms of partnerships?

    And there are, of course, four reliably liberal Justices who can be predicted to “find” a same-sex marriage right in the Constitution.

    Are we sure that they would go this far, even if the First Amendment issue raised in Bonilla v. Hurst gives them a way to get around Baker v. Nelson? On this particular question, I have trouble counting to two.

    Michael Ejercito (249c90)

  53. Do these polls separate the questions of whether or not marriage should be defined as between one man and one woman and whether or not the legal incidents of marriage should be available to other forms of partnerships?

    Fox news has a poll out which shows:

    37% legally married
    29% legal partnership
    28% no legal recognition

    when they asked the same question in May of 2004, they ha;

    25% legally married
    26% legal partnership
    40% no recognition

    this indicates

    (a) shift away from no recognition towards recognition

    (b) shift towards marriage in particular, not legal partnership.

    aphrael (73ebe9)

  54. They aren’t winning on the issue. Public opinion is moving toward acceptance of gay marriage.


    I know, I know it’s from the LA Times, but I think this article is interesting about polling data from the Prop 8 vote. Behind the numbers of Prop. 8 was written by:

    David Fleischer heads the LGBT mentoring project, which is now part of the Los Angeles Gay and Lesbian Center’s new leadership program Learn Act Build. The project’s full report and data can be viewed at

    I don’t think you can put Mr Fleischer in the pro prop 8 camp. I found this to be very interesting.

    Polling suggests that half a million people who opposed same-sex marriage mistakenly voted against the proposition. They were confused by the idea that a “no” vote was actually a vote for gay marriage. This “wrong-way voting” affected both sides, but overwhelmingly it helped the “no” side. Our analysis suggests that the division among California voters on same-sex marriage at the time of Proposition 8 was actually 54% to 46% — not so close. We are actually 1 million votes away from being able to reverse Proposition 8.

    As far as current polling, I believe that you really can’t get real numbers from a single poll, but should take numbers from aggregated poll numbers. Engram said:

    The media needs a short course in the concept of “error variance” (also known as “random error”). Simply put, it’s hard to know what numbers mean when they are aggregated over too few observations. In a post below, I used the baseball analogy to illustrate this point. In baseball, you need to average over a lot of games to determine who the best team is because individual games tell you so little. The outcome of an individual game is determined by many factors unrelated to which team is better (e.g., luck, a good player being a bit under the weather, a pitcher having an off day, etc.). All of those factors together constitute random error. Not appreciating the role of random error makes for a lot of news that is actually non-news. The best example might be opinion polls, where random fluctuations are reported as astonishing new developments, especially during a presidential campaign (I’ll post the details on that some other time). Another example, which has my attention at the moment, concerns casualties in Iraq.

    Tanny O'Haley (12193c)

  55. @Mitch #34

    The GOP cannot lose if it says, “Some believe in gay marriage, and some don’t. We believe the Constitution doesn’t speak to the issue and thus leaves it to the states and the states’ voters. Liberals believe that somehow gay marriage was mandated in the 1870s by the same amendment meant to give freed slaves equal state rights. Which do you believe?”

    I like the way you put it, allowing the social issue to be up front but on in a way that should not put off “moderates”. Though I would leave off the last sentence and not ask the question, just making the statement.

    Tanny O'Haley (12193c)

  56. Court Decisions and Trends in Support for Same-Sex Marriage seems to state that after SSM judicial decisions, support for SSM declines then starts to increase. I wonder if public support for SSM declines because of Judge Walkers outrageous decision will cause Kennedy to put his finger to the wind and decide to issue a stay?

    Tanny O'Haley (12193c)

  57. it when Harry Met
    Sally not when Harry Met
    Steve… peeps… get a grip!

    ColonelHaiku (2deed7)

  58. Aph

    Thanks for the links.

    The very fact that a supposed defendant (the California AG) in his case is working to subvert prop 8 shows that it is a perversion of the concept to claim there was a case or controversy between him and the anti-prop 8 forces.


    > They aren’t winning on the issue. Public opinion is moving toward acceptance of gay marriage.

    Last I checked there was only one state in the entire union where gay marriage was voluntarily adopted.

    Maybe in 20 years gay marriage will be a losing issue for the GOP, but right now, its not.

    But I do agree that the tea party agenda is far more pressing. And I equally agree with whoever said that you don’t need to have the GOP mentioning it to benefit from it.

    Aaron Worthing (A.W.) (f97997)

  59. it makes me less likely to think well of a Team R candidate if they yimmer yammer about gay marriage whilst our helplessly drifting little country is tossed about in a baleful sea of debt and decline and malaise

    happyfeet (19c1da)

  60. I think someone mentioned before, if the issue is put forth as another example of how the government isn’t listening to the people, since the govt. is currently dominated by Dems, they lose, Repubs benefit.

    We discussed previously what it means to govern with the consent of the people. I appealled to the situation in medicine where the issue is “informed consent”. I don’t think there has been an adequate public discussion of what is entailed in endorsing SSM.

    I do think some groups are to be commended for their persistence and eventually winning because the public, considerably lacking in critical analysis and principled stands, gets tired and gives in. That is what I think the “shift toward approval of SSM” is.

    Somewhere along the line the public was willing to enable the govt. Ponzi scheme known as Social Security. Just because the people can be talked, or bribed, into an idea does not mean it is a good one. IMHO

    MD in Philly (5a98ff)

  61. A more likely possibility is that Kenney will require states to create civil unions or domestic partnerships.

    That is a moderate ruling.

    While the California case does not touch on the issue, the Louisiana case does.

    Michael Ejercito (249c90)

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