Will The Supreme Court Hear Proposition 8 Appeal ?
October 1st will mark the opening day for the 2012-13 session of the United States Supreme Court so I thought I’d take some time to look over a few of the possible cases the court might hear this term. One of the cases up for consideration is the challenge to Proposition 8 in California (which overturned a prior state court ruling legalizing same sex marriage).
However it is far from certain they will hear the case. There are thousands of cases appealed to the court and in the end they only hear about 1% of those cases. I thought it might be informative to use the Prop 8 case to illustrate how those decisions are made.
From a technical standpoint when you appeal a case to the supreme court you file a petition for writ of certiorari and that petition must be granted in order for your case to be heard. In order for the writ to be granted you need to get the votes of 4 justices out of the 9 sitting on the court (commonly known as granting cert).
There are two major factors which plan into a justices decision on whether to vote to grant cert. The first relates to the legal and procedural issues while the second looks at the political and strategic ones.
On legal/procedural there are a number of factors to consider but three of the key ones are
1. Whether the case is ripe (IE has it been fully litigated in lower courts) ?
2. Would a ruling by the court have a broad national impact ?
3. Is there a good deal of conflict in lower courts ?
Although in theory the justices are not supposed to consider political or strategic issues the fact is that they often do. There is a good deal of politics in the law and the justices all think from a strategic direction.
For example, in 1960’s and 70’s conservative justices often denied cert on appeals when convictions had been overturned by lower courts because they did not want to give Warren court openings to make more liberal rulings.
But by the late 70′s and early 80’s the roles reversed as liberals started to deny in criminal appeals from convicts to stop Burger and Rehnquist courts.
Taking these factors into consideration I tend to think that the court will deny cert and leave the ruling by the lower court in place.
Looking first at legal/procedural the case is fairly limited in jurisdiction. The ruling by Judge Walker, as well as the decision by the 9th Circuit Court of Appeals were written very narrowly to apply only to the specific chain of events in California and thus would likely not even apply to full 9th, let alone nation.
Further there is not a major conflict of jurisdictions in play here. If you look at past cases like Brown, Roe, Death Penalty Cases, Health Care Reform, etc there were multiple district rulings going different ways. In Brown there were appeals from a number of different states, as there were in Roe and the appeals on the legality of the death penalty.
These cases also had national impact, with Brown and Roe striking down laws nationwide while the death penalty and health care reform cases applied in all 50 states. As noted above the Proposition 8 case would most likely not have such an impact.
Looking to the issue of ripeness, the court is likely to hear appeals on the legality of portions of the defense of marriage act this term. It would seem likely the court would want to rule on this issue first before hearing cases on the legality of rulings on same sex marriage in individual states.
On political/strategic there is also good reason to think the court would not want to take the case now.
From the point of view of the 4 liberal leaning justices, they could decide it’s better to take a win in California (which they would get with denial of cert) rather than risk the ruling being overturned. In addition, even if they won the case they would not gain much, since the ruling would likely just impact California. So it seems reasonable to say they would not take the case.
Looking to the four conservative leaning justices, they would see the four liberals as likely to uphold the ruling of the appeals court. That would put the case in the hands of Justice Kennedy. Given his generally libertarian views as well as the fact that the ruling and the briefs in the case have been heavily aimed at him (even quoting his prior rulings on similar issues) the odds favor him siding with the liberals. So the conservatives would also not be inclined to take the case.
So for these reasons I am leaning to the view that the court will deny cert (possibly as early as next week) which would mean same sex marriages could resume in California in the near future.
Of course as I have said before, predicting the behavior of judges is like predicting the behavior of three year olds, so you can never be sure what they will do.