an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The signs and banners outside the Supreme Court today referred to the right to marry but the argument in Hollingsworth v. Perry was all about constitutional structure. Indeed, I can’t remember a recent argument in which the entire Court appeared to take constitutional structure so seriously. The standing question (on which the outcome in the case might very well turn) presented a virtual civics lesson on democratic design: the role of elected officials in enforcing laws, the residual interests of ordinary citizens in having their laws enforced, the relationship between ballot initiatives and ordinary legislation, and the appropriate function of the courts. And although nobody uttered the F-word, federalism concerns drove questions from nearly all of the members of the Court. In a sign that we are all federalists now--or at least for today--Justice Sotomayor suggested that the marriage question should “perk” at the state level before the Court gets involved. Several justices likewise highlighted the concern (it clearly doomed the Solicitor General’s nine-state solution) that requiring states that already give same-sex couples all the benefits of marriage to also give those couples a marriage license would shut off the very experimentation that federalism is meant to encourage. Today was not a good one for the odd couple of David Boies and Ted Olson, whose effort to establish a right to same-sex marriage nationwide came to a screeching halt. But constitutional structure proved to be alive and well. One structural question, of course, remains: can five members of this third branch of government now agree on an outcome? Posted
by Jason Mazzone [link]
"Today was not a good one for the odd couple of David Boies and Ted Olson"
The couple who asked the USSC not to take the case in the first place.
"whose effort to establish a right to same-sex marriage nationwide came to a screeching halt"
That is their ultimate goal, but their choice to oppose granting cert. expressed their willingness to go about it pragmatically.
You want a way for it to "perk"? Accept CA9's argument that a permanent ban (the SG's first point of four) particularly given the facts on the ground in CA is a problem while leaving open having ala Hawaii the legislature by normal political processes regulate it.
On the standing point, it seems that "fiduciary" is the wrong term to describe the relationship which the party representing the state must have for Article III standing. What is needed is an authorized officer of the state (even if the authorization is only pro hac vice). And to be an authorized officer of the state, one must take the constitutional oath to "preserve, protect and defend." This the petitioners did not do.
Finally, I think the SG may come out better than commentators are anticipating. On standing, his "close question but goes with the respondents" seemed to require only a simple opinion from the Court. On the merits, his focus on standard of review (which the parties did not address) and his four very effective points in response to Justice Alito made the "marriage without the name denies equal protection" argument also seem simple. Of course, that argument does not address the big argument of "barring marriage denies equal protection", but the SG's position would buy the Court time while the states perk. (Yes, Josh.)
NYT, I believe, had an article (before the oral argument) on the skill of the S.G. and I also think he made a good case, including answering the "press pause" argument of the other side by noting CA did more with Prop 8.
Also, his argument provided ways to limit the case (e.g., if a state wants to put on a stronger case, it can, but the Prop 8 side -- perhaps underlining the dangers of relying on such people for standing? - did not).
Where else did the SG come out better than commentators thought, I wonder. That's it. My coffee is perking.
Perhaps the most interesting issue before the court is how to deal with the standing problems created by the increasing number of Democrat executives refusing to defend laws they dislike. Even the left wing of the court appears to be irritated by this tactic.
Yup, standing is the big issue here: If petition organizers don't have standing to defend a proposal or initiative in court when the government it was forced upon refuses, the petition process for changing laws is essentially rendered toothless. It becomes too easy for an executive that doesn't like the proposal to encourage a challenge to it, and then refuse to defend or even take a dive.
The Court needs to dump this fiction that the government is the appropriate defendant when laws the people directly created are challenged.
The Constitution promotes a republican form of government though Brett and Sandy Levinson finds various parts of it lacking.
It is sensible, especially since as Walter Dellinger noted there are various ways for the people of CA (not limited to not electing someone who campaigned on not defending Prop 8 on appeal) to protect their interests & still to not have Art. III standing in place to strongly defend direct democracy.
Note too that this regards federal courts. In most cases, the measures won't be overturned as violations of the federal constitution. It is far from 'toothless' in that regard too, particularly when they have standing in state court.
his four very effective points in response to Justice Alito made the "marriage without the name denies equal protection" argument also seem simple. Of course, that argument does not address the big argument of "barring marriage denies equal protection", but the SG's position would buy the Court time while the states perk. http://www.joyrs.comwindows 7 ultimate product keyhttp://www.rs2fun.com