Did Supreme Court Conservatives Grant the Prop 8 Case?

Given some of the comments by Justice Anthony Kennedy during the oral arguments on the Proposition 8 case that suggested that the Court might find a lack of standing and dismiss the case, the question arises as to which justices made the decision to hear the case in the first place.  A piece in the New York Times suggests it was homophobe extraordinaire and bigot-in-chief Antonin Scalia and his cabal of ultra-conservatives:  Thomas, Alito and perhaps Roberts.  While they may have had the votes to accept the appeal, one can only hope that they find themselves unable to stop the tide of gay marriage.  If indeed the conservatives got the case on the Court docket, I hope it back fires and somehow Justice Kennedy can be brought to back an expansive national ruling for gay marriage.  The irony that Scalia shot his cause down would be delicious were that to occur.  Here are excerpts from the Times article:

If nothing else, this week’s arguments provided a telling glimpse into the process through which the court selects its docket, one that is usually shrouded in exceptional secrecy. The arguments also cleared up most of the mystery of whose idea it had been to hear the case, a challenge to Proposition 8, California’s ban on same-sex marriage. 

As it turns out, it would seem that the conservative members of the court, making a calculation that their chances of winning would not improve with time, were behind the decision to take up the volatile subject. 

The aha moment came on Tuesday.  After Justice Anthony M. Kennedy suggested that the court should dismiss the case, Justice Antonin Scalia tipped his hand.  “It’s too late for that now, isn’t it?” he said, a note of glee in his voice. “We have crossed that river,” he said.

Justice Scalia, almost certainly joined by Justices Clarence Thomas and Samuel A. Alito Jr., apparently made a twofold calculation: that their odds of winning would not improve as same-sex marriage grows more popular and more commonplace, and that Justice Kennedy, who is likely to write the decision in the case concerning the 1996 law, would lock himself into rhetoric and logic that would compel him to vote for a constitutional right to same-sex marriage in a later case.

 

It is not that the conservatives felt certain they would win. It is that their chances would not improve in the years ahead. 

That leaves the question of the fourth vote. The most likely answer is that it was that of Chief Justice John G. Roberts Jr., though he did not sound at all pleased on Tuesday to have the case before him.  There is also a chance that the fourth vote came from Justice Kennedy himself, and his very questioning provides support for that theory. “I just wonder,” he said, sounding a little plaintive and a little angry, “if the case was properly granted.”

“If they DIG [dismiss as “improvidently granted”] it now, after all of the fanfare and all of the attention and all of the amicus briefs,” he said, “it will look like they didn’t know what they were doing at the outset.”  Still, said H. W. Perry Jr., a law professor at the University of Texas, “it is a case that allows a lot of exit points.” The one that seemed most attractive to a majority of the justices on Tuesday was that supporters of Proposition 8 did not have standing to appeal from a decision entered against state officials. 

A dismissal on standing grounds could lead to some messy follow-on litigation in California but will probably effectively allow same-sex marriages there.  So why did the court agree to hear the case? 

The ultimate answer to that question is years away and will only come when private papers of the justices become available decades from now.   Meanwhile, many of us will be sweating bullets waiting to see what ruling is handed down in June.