Will the Supreme Court Take Up Prop 8? Another Opinion…
The other day we posted Rachael Myrow’s interview with UC Davis law professor Vik Amar about the likelihood that the U.S. Supreme Court would take up the Proposition 8 case now that the high court is the last available avenue of appeal to the measure’s supporters.
Amar said that the Ninth Circuit’s narrow, exclusive-to-California opinion was an attempt to ward off the Supremes from interesting themselves in the ruling, which holds that California’s same-sex marriage ban is unconstitutional. He also said the high court might want to hear a First Circuit case stemming from the Defense of Marriage Act before or instead of the Prop 8 matter, because the DOMA case raised less sweeping issues than Prop 8.
Finally, Amar said that the issue of whether or not Prop 8 proponents should have been given standing to defend the law in the first place was not adequately dealt with by either the Ninth Circuit or the California Supreme Court, which advised the Ninth Circuit that standing should indeed be granted.
Now, we turn to another legal analyst, Professor Rory Little of UC Hastings College of the Law, to address some of the same issues in answering the question: Will the Supreme Court agree to rule on Proposition 8?
Edited transcript from Rachael Myrow’s interview earlier this week:
RACHAEL MYROW: So what do you think the Supreme Court will do? Vik Amar said he thought the Supreme Court might look at the case involving the Defense of Marriage Act first?
PROFESSOR RORY LITTLE OF HASTINGS COLLEGE OF LAW: Predicting what the Supreme Court will do is kind of like predicting what number is going to come up on a roll of the dice. It’s all tea-leaf reading.
It seems to me that the Supreme Court will be interested in the DOMA case, but I think they’re also likely to be interested in this case. And it’s not uncommon to decide to grant review on two related cases and set them for argument at about the same time. I think the Supreme Court may well decide to grant review on both of them if they’re interested in the issue. And if they’re not, they may decide to grant review on neither.
RACHAEL MYROW: Do you think the Supreme Court might decide that the Ninth Circuit was wrong to say that Prop 8 proponents have standing to defend the case?
RORY LITTLE: That’s possible, but I think it’s unlikely. Certainly the standing issue will be argued.
You remember the Ninth Circuit certified the standing question over to the California Supreme Court and the California Supreme Court rendered its own opinion on the topic and said there was standing. And I think that probably is going to settle the issue even for the Supreme Court. They’re going to say if the state is prepared to say there’s injury here based on state law, that’s good enough for us.
RACHAEL MYROW: What is the absolute earliest the Supreme Court might decide to take this up?
RORY LITTLE October. They’re in the last three weeks of the term right now. Then they will recess to October. Which means they won’t have a conference, a voting meeting of the entire court, until late September. I think it’s not likely they will take it up at that point. It will depend on how fast the parties file their briefs. You have 90 days to file a cert petition and extensions are routinely granted. So it’s very likely this would not be ripe for the court to decide to review until November or December.