Supreme Court, DOMA, and worry
Dec. 8th, 2012 11:01 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
drwexMost of my friends seem to be happy that the Supreme Court has agreed to hear a couple of DOMA-related cases.
Things that are important to understand about SCOTUS.
One is that the Court rarely takes cases just to uphold things. If the Court likes the way the decision has gone they can just leave it be. That doesn't mean they'll automatically reverse cases that come to them. Sometimes there are issues of national controversy and the cases aren't clear. Sometimes lower courts disagree. Sometimes there are lines to be drawn. Sometimes the current Court feels it's time to revisit earlier Courts' decisions. Et cetera. But still, taking a case just to uphold it is rare.
Two is that the Court is a court of principles. When Roberts was up for confirmation he famously claimed that the role of the Court was analogous to a baseball umpire, calling balls and strikes. That's bullshit. If cases were that easy they wouldn't make it to SCOTUS. The job of SCOTUS is more like determining what it means for the strike zone to be "at the batter's knee" - is that the top of the knee, the bottom, or something in between. What if one knee is raised - which knee do you judge by? The complicated cases make it to SCOTUS and in response SCOTUS relies on principles. You have to, or every law becomes a little island. Sometimes principles lead you in weird directions, as when Roberts found a principle under which he could uphold Obamacare. I think that was a bad decision, but I can see his principles at work.
Three is that when the Court takes a case they don't necessarily just accept the case. They can specify issues they want the parties to argue. You can read the orders here (http://www.supremecourt.gov/orders/courtorders/120712zr_3f14.pdf) - it's short. In the DOMA and Prop 8 cases, they have directed the parties to brief on additional questions.
Now with all that preamble out of the way, the first question is why take these cases? (Caveat: by the time you read this on, say, Monday, they may also have granted cert in other cases. It's a little odd that they didn't deny cert to other cases, nor combine them.)
Taking the NY rather than the MA case makes sense. If they took the MA case it's likely Kagan would have had to recuse herself, leading to a possible 4-4 split decision. The Court tries to avoid that wherever possible. The issues in the MA and NY cases are roughly comparable, though I think the NY case is cleaner and simpler. No other DOMA challenge is "ripe" enough (in the legal sense meaning that possible lower-court remedies have been exhausted).
The fact that they took the Prop 8 case is troubling. As noted above, they could have just denied cert and let it stand. In fact, the decision in that case was written as narrowly as possible, just applies in CA, and so on. Even if SCOTUS upholds, the decision won't affect DOMA or other states.
If you followed the contortions around Prop 8 you know that the state refused to defend it. It was challenged at District level, lost, and that was that. Until people who wanted Prop 8 upheld intervened and then there was a long discussion between the 9th Circuit and the CA State Supreme Court over who had standing to appeal the decision. The fact that SCOTUS specifically asked for arguments on the standing question means (to me) that they may be focusing on whether the right principles were followed in this case. They could strike down the 9th decision on principles of standing.
If that happens, it's bad. The District decision has no value state-wide. The individuals named in the case win, but everyone else in CA is screwed and we go back to the lowest-level courts and start over. It's even possible that SCOTUS would find some way to overrule the District and thus uphold Prop 8, but I think that's much less likely. It's also possible that the Court could overturn the 9th decision on standing grounds and direct the state of CA to file an appeal. I think that's the best outcome we can hope for here.
On the NY case, the fact that they are asking about jurisdiction can be read a bunch of ways. One way is that SCOTUS wants to duck this whole question and will find that the House group did not have standing so the case can't be appealed. That lets the NY case stand, but without national precedent and just delays the day of reckoning. That's less good, but not wholly bad.
The problem I see is that the Court may be unhappy with how the Obama administration had handled this. It's good politics for Obama to say that he thinks DOMA is unconstitutional and won't defend it. It's very bad for a president to pick and choose which laws he's going to enforce.
I'm sure I (and most of my liberal readers) would be very upset if, say, a President Romney had declared that he thought the Voting Rights Act was unconstitutional and he wouldn't defend court challenges to it, for example. A president who doesn't like a law can try to get Congress to fix it, but he's still obliged to follow the laws as written or to get a case before the Court and strike the law down.
In addition, our legal system is based on the idea that everyone (every thing) deserves fair and full representation. You may know a guy is guilty, but he still gets a lawyer who might argue his case, force the other side to show its evidence, strike a plea deal - whatever. The principle is still the same: fair and honest effort by both sides.
If SCOTUS feels that Obama and the state of California are not playing by the rules, they may overturn the NY and Prop 8 decisions as a way of forcing the President and Governor Brown to do what the Constitution requires them to do - uphold the law of the land. In order to do that, they'll have to argue standing, which they've specifically asked to do.
Obama's political move may end up costing our side a case we should have won. And I am not happy.
Things that are important to understand about SCOTUS.
One is that the Court rarely takes cases just to uphold things. If the Court likes the way the decision has gone they can just leave it be. That doesn't mean they'll automatically reverse cases that come to them. Sometimes there are issues of national controversy and the cases aren't clear. Sometimes lower courts disagree. Sometimes there are lines to be drawn. Sometimes the current Court feels it's time to revisit earlier Courts' decisions. Et cetera. But still, taking a case just to uphold it is rare.
Two is that the Court is a court of principles. When Roberts was up for confirmation he famously claimed that the role of the Court was analogous to a baseball umpire, calling balls and strikes. That's bullshit. If cases were that easy they wouldn't make it to SCOTUS. The job of SCOTUS is more like determining what it means for the strike zone to be "at the batter's knee" - is that the top of the knee, the bottom, or something in between. What if one knee is raised - which knee do you judge by? The complicated cases make it to SCOTUS and in response SCOTUS relies on principles. You have to, or every law becomes a little island. Sometimes principles lead you in weird directions, as when Roberts found a principle under which he could uphold Obamacare. I think that was a bad decision, but I can see his principles at work.
Three is that when the Court takes a case they don't necessarily just accept the case. They can specify issues they want the parties to argue. You can read the orders here (http://www.supremecourt.gov/orders/courtorders/120712zr_3f14.pdf) - it's short. In the DOMA and Prop 8 cases, they have directed the parties to brief on additional questions.
Now with all that preamble out of the way, the first question is why take these cases? (Caveat: by the time you read this on, say, Monday, they may also have granted cert in other cases. It's a little odd that they didn't deny cert to other cases, nor combine them.)
Taking the NY rather than the MA case makes sense. If they took the MA case it's likely Kagan would have had to recuse herself, leading to a possible 4-4 split decision. The Court tries to avoid that wherever possible. The issues in the MA and NY cases are roughly comparable, though I think the NY case is cleaner and simpler. No other DOMA challenge is "ripe" enough (in the legal sense meaning that possible lower-court remedies have been exhausted).
The fact that they took the Prop 8 case is troubling. As noted above, they could have just denied cert and let it stand. In fact, the decision in that case was written as narrowly as possible, just applies in CA, and so on. Even if SCOTUS upholds, the decision won't affect DOMA or other states.
If you followed the contortions around Prop 8 you know that the state refused to defend it. It was challenged at District level, lost, and that was that. Until people who wanted Prop 8 upheld intervened and then there was a long discussion between the 9th Circuit and the CA State Supreme Court over who had standing to appeal the decision. The fact that SCOTUS specifically asked for arguments on the standing question means (to me) that they may be focusing on whether the right principles were followed in this case. They could strike down the 9th decision on principles of standing.
If that happens, it's bad. The District decision has no value state-wide. The individuals named in the case win, but everyone else in CA is screwed and we go back to the lowest-level courts and start over. It's even possible that SCOTUS would find some way to overrule the District and thus uphold Prop 8, but I think that's much less likely. It's also possible that the Court could overturn the 9th decision on standing grounds and direct the state of CA to file an appeal. I think that's the best outcome we can hope for here.
On the NY case, the fact that they are asking about jurisdiction can be read a bunch of ways. One way is that SCOTUS wants to duck this whole question and will find that the House group did not have standing so the case can't be appealed. That lets the NY case stand, but without national precedent and just delays the day of reckoning. That's less good, but not wholly bad.
The problem I see is that the Court may be unhappy with how the Obama administration had handled this. It's good politics for Obama to say that he thinks DOMA is unconstitutional and won't defend it. It's very bad for a president to pick and choose which laws he's going to enforce.
I'm sure I (and most of my liberal readers) would be very upset if, say, a President Romney had declared that he thought the Voting Rights Act was unconstitutional and he wouldn't defend court challenges to it, for example. A president who doesn't like a law can try to get Congress to fix it, but he's still obliged to follow the laws as written or to get a case before the Court and strike the law down.
In addition, our legal system is based on the idea that everyone (every thing) deserves fair and full representation. You may know a guy is guilty, but he still gets a lawyer who might argue his case, force the other side to show its evidence, strike a plea deal - whatever. The principle is still the same: fair and honest effort by both sides.
If SCOTUS feels that Obama and the state of California are not playing by the rules, they may overturn the NY and Prop 8 decisions as a way of forcing the President and Governor Brown to do what the Constitution requires them to do - uphold the law of the land. In order to do that, they'll have to argue standing, which they've specifically asked to do.
Obama's political move may end up costing our side a case we should have won. And I am not happy.
