2001—In what the dissenting judge describes as “a seminal case in more ways than one,” a divided panel of the Ninth Circuit—with, surprise!, Judge Stephen Reinhardt in the majority—rules that a prisoner serving a life term has a federal constitutional right to procreate that encompasses (absent the prison’s showing countervailing penological interests) the right to mail his semen from prison so that his wife can be artificially inseminated.  An en banc panel of the Ninth Circuit later reverses that ruling by a 6-5 vote.

1992—Recognizing that “only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of [the] extraordinary remedy” of a writ of mandamus, the Third Circuit finds (in Haines v. Liggett) that New Jersey federal district judge (and This Day all-star) H. Lee Sarokin has created such exceptional circumstances.  Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers, Sarokin had declared that “the tobacco industry may be the king of concealment and disinformation” and had charged that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!”  (Exclamation point in original.)  Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin had ruled that the crime-fraud exception to the attorney-client privilege applies and ordered the requested documents produced.  Undermining defendants’ opportunity to appeal his ruling, he had quoted extensively from the very documents as to which privilege had been asserted.

The Third Circuit, in an opinion by LBJ appointee Ruggero Aldisert, not only vacates Sarokin’s discovery order but also takes the extraordinary step of removing Sarokin from the case.  The Third Circuit lambastes Sarokin for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted (“We should not again encounter a casualty of this sort”), and for destroying any appearance of impartiality. 

When President Clinton nominates Sarokin to the Third Circuit in 1994, Senator Patrick Leahy displays his usual denial of reality as he lauds Sarokin as “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

2003—In Summerlin v. Stewart, the Ninth Circuit addresses whether the Supreme Court’s decision in Ring v. Arizona, which held that aggravating factors under Arizona’s death-penalty law need to be proved to a jury rather than to a judge, applies retroactively to cases already final on direct review.  The limited en banc panel of eleven judges (a creature unique to the Ninth Circuit), consisting in this case of ten Carter/Clinton appointees and one Reagan appointee, divides 8 to 3 in favor of a ruling that Ring applies retroactively.  In her dissent, Judge Rawlinson observes that the majority “wanders afield”—and contradicts a very recent Supreme Court precedent as well as rulings from other circuits—in holding that Ring announced a substantive rule.  She also disputes the majority’s alternative holding that Ring announced a watershed rule of criminal procedure.

On review, the Supreme Court (in Schriro v. Summerlin) reverses the Ninth Circuit.  Not a single justice expresses agreement with the Ninth Circuit’s holding that Ring announced a substantive rule, and Justice Scalia’s opinion takes four brief paragraphs to dispense with the “remarkable” analysis that covered 20 pages of the Ninth Circuit’s ruling.  By a vote of 5 to 4, the Court rules that Ring did not announce a watershed rule of criminal procedure.

Rasmussen just came out with a poll showing that a plurality of voters think the courts are too liberal — 38 percent, compared to 18 percent who think they are too conservative. So for all the harping on Citizens United and the distortion of Ledbetter and other recent Supreme Court cases, the voters aren’t convinced.

Even more interesting is the poll’s finding that 65 percent of likely voters would rather elect their own judges than have them appointed by others. Could it be that the voters intuitively know what Brian Fitzpatrick has identified in a Missouri Law Review article, that there are good reasons to be concerned that judges nominated by lawyer-dominated committees will ultimately be well to the ideological left of the electorate?

Fitzpatrick’s data from Tennessee and Missouri — two states that follow the “Missouri Plan” for appointment of judges — undermines the claim of that system’s defenders that their process is non-partisan. In Tennessee, his data showed that 67 percent of appellate nominees had voted in Democratic primaries, compared to only 33 percent in Republican primaries, even though the state’s voters were split evenly between the two parties. In Missouri, the data were even more stark: For the nominees for whom campaign donation data was available, 87 percent donated primarily to Democrats, while only 13 percent gave primarily to Republicans. The amount of money contributed by judicial nominees was skewed 93 percent to Democrats and only 7 percent to Republicans. Again, this is in a state where the voters themselves were split nearly 50/50 over the same time period, so elected judges would have almost certainly produced less leftist courts.

The failure of the judicial appointment process to produce what its advocates promised — a less “politicized” judiciary — is leading to backlash in Iowa, Missouri, Colorado, and Kansas, and the movement is spreading to other states. Watch out, George Soros, the American people are becoming more and more skeptical of delegating their own inherent power of self-government, and would rather take back that power than hand it over to a committee of lawyers.

Not that this is directly “on point” for Bench Memos, but given the propensities of our courts as organs of elite opinion, readers may want to see “Same-Sex Marriage and Public Opinion: Spirals, Frames, and the Seinfeld Effect,” a piece on which I collaborated with my wife Gwen Brown, at Public Discourse.  A sample:

In the 1993 Seinfeld episode “The Outing,” a female reporter mistakes Jerry Seinfeld and his friend George Costanza for homosexual partners. When her misunderstanding dawns on them, they vehemently deny that they are gay, yet constantly punctuate their denials with the rote expression “not that there’s anything wrong with that!” As heterosexual men, Jerry and George are both keen to be taken for what they are, but there’s more to it than that: they can’t entirely inhibit revulsion at the idea that others think they are homosexual, and perhaps revulsion at the very idea of being homosexual.

Their repeated exclamation “not that there’s anything wrong with that!”—invariably uttered with far less passion than their denials—is a socially conditioned response. Somewhere they have learned that it is unacceptable to cast aspersions on homosexuality, and that the politically correct response is to say (as Jerry does at one point, albeit rather too excitedly), “People’s personal sexual preferences are nobody’s business but their own!” Jerry and George struggle to suppress what they really think with what they have been taught to think is “enlightened opinion.” Call it the Seinfeld Effect.

Seventeen years later, the advocates of same-sex marriage are making “people’s personal sexual preferences” everybody’s business, and are counting on the Seinfeld Effect to suppress what most Americans really think about same-sex marriage. They are waging their struggle, after all, not just in courts of law but also in the court of public opinion, and the advocates’ success with certain judges will not be secure unless most Americans are with them. So how are they doing?

By the way, starting today Public Discourse (published by the Witherspoon Institute, where I now work) is going from two new articles a week (on Tuesday and Friday) to three new articles a week (on Monday, Wednesday, and Friday).  But you won’t miss anything if you get that RSS feed . . .

1971—By a vote of 6 to 1, the California supreme court rules in Serrano v. Priest that California’s “public school financing system, with its substantial dependence on local property taxes and resultant wide disparities in school revenue, violates the equal protection clause of the Fourteenth Amendment.”  Specifically, “the right to an education in our public schools is a fundamental interest which cannot be conditioned on wealth,” and the state financing system “invidiously discriminates against the poor because it makes the quality of a child’s education a function of the wealth of his parents and neighbors.” 

Two years later (in San Antonio Independent School District v. Rodriguez), the U.S. Supreme Court, by a vote of 5 to 4, rejects Serrano’s analysis, as it  rules that Texas’s similar system of financing public school education does not violate equal-protection guarantees.  Citing Serrano,Justice Powell’s majority opinion adds this prescient “cautionary postscript”:

“[T]here is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education.… The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in overburdened core-city school districts would be benefited by abrogation of traditional modes of financing education.…   Additionally, several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers, a result that would exacerbate rather than ameliorate existing conditions in those areas.”

Ah, the unintended consequences of liberal judicial activism:  According to experts, the Serrano decision “overlooked the fact that 75% of poor children lived in high spending districts,” and it thus “actually led to lower school spending for most poor children” and to “equalized mediocrity.”  Further, Serrano and its follow-on rulings are credited with triggering the property-tax revolt that culminated in California’s Proposition 13—“After all, the logic goes, if increased property taxes don’t help our schools, why should we be for increased property taxes”—and helped lead to Ronald Reagan’s election as president in 1980.   

2006—In a front-page story in the New York Times, Supreme Court reporter Linda Greenhouse reports a “sudden drop” in the number of female law clerks for the first full year of the Roberts Court.  Justice Souter, who has no female clerks for that year, attributes the reduction to random variation, but Greenhouse observes that Justice Ginsburg had considered the drop sufficiently significant to take note of it in a speech to the American Sociological Association.  Whatever Ginsburg’s sociological musings might have been, she ought to have had a keener understanding of the consequences of nondiscriminatory merit-based selection and random variation.  In her 1993 Supreme Court confirmation hearing, it was learned, much to Ginsburg’s visible embarrassment, that in her 13 years on the D.C. Circuit she had never had a single black law clerk, intern, or secretary.  Out of 57 employees, zero blacks.

Linda Greenhouse, no longer on the New York Times’ Supreme Court beat but blogging for the paper from Yale Law School these days, has an interesting blog post about a case on the display of the Ten Commandments in a public building that is coming back to the Supreme Court soon.

But I don’t want to talk about that case.  I want to talk about Greenhouse’s nostalgic longing for John Paul Stevens, whom she aptly describes as the “strictest separationist” on the Supreme Court.  She particularly admires one of Stevens’ worst notions, noting that he was “the only justice willing to articulate the position that laws incorporating the view that life begins at conception are theological exercises that should be invalidated on Establishment Clause grounds.”  The “only justice” indeed.  No other justice ever joined Stevens in this view, probably because it is one of the dumbest ever pronounced by a justice of the Supreme Court.

Stevens first expressed this view, to my knowledge, in his opinion concurring in part and dissenting in part in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), 560ff.  The Missouri law at issue in that case had declared that every human life “begins at conception.”  Justice Stevens professed himself incapable of seeing any “secular legislative purpose” in such a declaration, and held that therefore the law expressed a purely “theological” point of view and was thus a violation of the establishment-of-religion clause of the first amendment.  But of course the “purpose” of the Missouri declaration was obvious on its face.  It was intended to state, and did state, a fact as a predicate for the statutory requirements to follow.  Standard textbooks in embryology, then as now, unequivocally declared the scientific fact that every human life begins at conception.  What an embryology textbook cannot tell us, as a matter of biology, is what to do about that fact–what moral requirement, if any, that fact should impose on us.  This is what the Missouri legislature, quite reasonably, sought to do.

Stevens followed the lead of Roe v. Wade itself in regarding a settled fact as unsettled.  This permitted him to claim, ignorantly or willfully, that all attempts to speak to the moral standing of human embryonic or fetal life are necessarily the expression of “theological” claims.  Look here, he argued, St. Thomas Aquinas had such-and-such a view on the stages of prenatal development.  Other religious figures have had different views on the same question.  It follows that all views on “life” before birth–he should have said “personhood,” but yes, he was that confused–are necessarily religious views.  And for Missouri to take one such view and try to embody it in law is to “establish” a religious viewpoint and impose it on everyone, contrary to the first amendment.  Or so Stevens reasoned (I employ the verb generously).

But to observe that theologians have wrestled with questions at the intersection of fact and moral principle is not to establish that the questions, or the answers to them, are of a peculiarly “religious” character, as the teachings of special revelation rather than reason.  St. Thomas also had interesting things to say about when a killing was not a culpable homicide.  Other figures in the Christian and other religious traditions have had different things to say on the same subject.  It does not follow that legal distinctions among various kinds of killing–when one is justifiable and therefore not a crime, while another is merely involuntary manslaughter, and still another is first-degree murder–involve the employment of “theological” categories of thought.  Yet for Justice Stevens to be logically consistent–a high bar for him to clear, I know–he would have had to invalidate all homicide statutes as violations of the establishment clause.

Biological ignorance, theological incompetence, and logical incoherence: it all added up to one of the most addled arguments in the annals of the United States Reports.  No wonder even Harry Blackmun never joined Stevens in this view.  But Linda Greenhouse?  She’s sorry to see Stevens go, precisely because he takes this scoundrelly nonsense with him.

The Washington Post reported on Thursday that retired justice Sandra Day O’Connor is going to drop in on the little people of Iowa next month to instruct them that it’s just bad bad bad to want to hold judges accountable at the polls for their tyrannical usurpations of political power:

Conservative activists are trying to oust three judges on the state Supreme Court whose unanimous ruling last year legalized same-sex unions. . . .

The effort in Iowa worries not only gay rights advocates but some legal experts who say it is wrong to punish judges for an unpopular decision. For critics of judicial elections, Iowa is offering a compelling example of the peril of subjecting judges to voters’ whims.

Backers of the campaign say they are simply exercising their democratic right to rein in a judiciary that has overstepped its authority on same-sex marriage and other issues. . . .

The controversy has drawn the attention of the Iowa Bar Association and legal experts around the country, including former U.S. Supreme Court justice Sandra Day O’Connor, who is slated to address the matter at an event here next month. O’Connor for years has spoken out against the judicial elections, arguing that they create “politicians in robes.”

The Post‘s Sandhya Somashekhar might honestly be making an effort to be evenhanded in the second and third paragraphs excerpted above.  But “overstepped its authority” would be an apt description of a state supreme court that had ruled, say, that a confession can be thrown out because police did not get a Miranda warning’s recitation letter-perfect.  When judges create a right to same-sex marriage out of whole cloth, that’s more than “overstepping.”  That’s a direct assault on the constitutional order, and the effort to defeat the offending Iowa jurists in this year’s retention elections is understood by its advocates to be an attempt to restore something severely damaged by the judges.

Somashekhar talked to “legal experts” concerned that the judges are threatened with being “punished” for “an unpopular decision.”  Removal from office for a betrayal of trust could, I suppose, be described as “punishment.”  But the Iowa record–no justice of its supreme court has ever been removed before in a retention election–suggests that mere “unpopularity” has never moved the people of the Hawkeye State to precipitous behavior.  Couldn’t Somashekhar find any “legal experts” to express the other side of things here?  (Next time try Ed Whelan, whose e-mail address is published on this site!)  As for the “peril of subjecting judges to voters’ whims,” how about the peril of subjecting voters to judges’ whims?

And that brings us to Sandra Day O’Connor, one of the most effective and successful “politicians in robes” ever to sit on the Supreme Court of the United States.  She is dedicating her declining years to the cause of “judicial independence,” which for her means: no judicial elections in the states; no talk of reform in the federal judiciary; no probing questions during Supreme Court nomination hearings; no wild talk of impeaching federal judges no matter how obvious their usurpations; and, in fine, no criticism of the judiciary that actually calls the judges what they are, usurping tyrants.  Justice O’Connor, you see, is dead set against us mere voters “politicizing the judiciary.”  Don’t we understand that that’s the judges’ job?

Before I head out of town on vacation, I’ll note that I’ll be taking part in a discussion of same-sex marriage on Tuesday, Sept. 7, at Northwestern law school.  The event is jointly sponsored by the law school chapters of the Federalist Society and the American Constitution Society and will begin at noon.  The other confirmed participants so far are philosopher Martha Nussbaum and Camilla Taylor (an attorney with Lambda Legal).  (There’s not yet an online link for the event.)

2009—In what Fourth Amendment expert Orin Kerr describes as the “most free- wheeling, ‘look ma no hands’ legal decision I’ve read in a long time,” the en banc Ninth Circuit, in a majority opinion by Chief Judge Alex Kozinski (in United States v. Comprehensive Drug Testing, Inc.), announces a set of new rules governing searches and seizures of electronic records. Among the rules:  “Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.” In his partial dissent, Judge Carlos Bea complains that the majority’s “bright-line diktats” effect a “dramatic doctrinal shift” in a “rapidly developing area” and that the majority should instead have limited its decision “as precisely as possible to the case at hand.” Kerr observes that the court’s “laundry list of brand-new rules, introduced with no citations to any authority,” reminds him of the Warren Court’s inventions in Miranda v. Arizona.

Bench Memos readers are surely aware of Judge Royce Lamberth’s ruling yesterday enjoining the Obama administration’s stem-cell funding policy as contrary to federal law forbidding the funding of embryo-destructive research.  I’ll be on “America’s Morning News” on the Talk Radio Network, discussing this development with John McCaslin and Amy Holmes, tomorrow at 8:15 a.m. EDT.  Check your local stations for this syndicated program.

1995—The citizen-suit provision of the Endangered Species Act authorizes “any person” to sue for violations of the ESA.  Demonstrating why liberal judicial activists should be an endangered species, Ninth Circuit judge Stephen Reinhardt, joined by two other Jimmy Carter appointees (Harry Pregerson and William C. Canby, Jr.), rules in Bennett v. Plenert that the so-called “zone of interests test” that courts have developed (beyond Article III’s constitutional requirements) as a prudential limitation on standing overrides the broad language of the citizen-suit provision.  Therefore, the court concludes, “plaintiffs who assert no interest in preserving endangered species”—in this case, ranch operators and irrigation districts who alleged that they would be harmed by reservoir levels designed to protect two species of sucker fish—cannot challenge violations of the ESA.

On review by the Supreme Court, not even the Clinton Administration will defend the Ninth Circuit’s reasoning.  In a unanimous opinion (in Bennett v. Spear), Justice Scalia explains that the zone-of-interests test is a judicially self-imposed limit on standing that Congress is free to negate—and that Congress did so through the ESA’s citizen-suit provision.

Ted Olson and his anti-Prop 8 media machine have been aggressively leveraging his past associations with conservative legal causes in support of his newfound support for the invention of a constitutional right to same-sex marriage.  In so doing, they’ve tried to obscure the fact that the position that the Constitution can and should be interpreted to invalidate traditional marriage laws can’t possibly be reconciled with the conservative legal principles that Olson used to purport to stand for.  (I’m not addressing here the very different question whether a conservative can soundly support legislative revision of marriage laws to include same-sex couples.)

For anyone who has wondered what really accounts for Olson’s new position, I pass along these excerpts from a New York Times article last week on the influence of Lady Booth Olson, Olson’s wife since 2006:

Lady Olson was more than just a minor behind-the-scenes player in this potentially pivotal case.

“Lady could not have been more supportive of this,” Mr. Olson said in an interview shortly before Vaughn R. Walker, chief judge of the United States District Court hearing the case, ruled on Aug. 4 that Proposition 8 was unconstitutional. “And she’s certainly influenced my views — her ideas, her approach, her feelings.” …

Mr. Olson’s previous wife, Barbara, was a conservative commentator who was killed on Sept. 11, 2001, when she was on the hijacked plane that crashed into the Pentagon. Some friends hypothesize that Lady Olson just might have softened some of her husband’s views.

“In my innermost thoughts, I like to think he thought that on some level, but Ted’s never said that,” Mrs. Olson said. “He’s very proud. He owns his own decisions.”

I think that I’ll refrain from further comment.

2006—The New York Times reports that Michigan federal district judge Anna Diggs Taylor, who issued a wild ruling the previous week declaring that the National Security Agency’s Terrorist Surveillance Program is unconstitutional (see This Day for August 17, 2006), is a trustee and officer of a group that has given at least $125,000 to the Michigan ACLU, the plaintiff in the NSA case.  Just as the supposed legal ethicists on the Left recklessly fling flimsy ethics charges against judicial conservatives, they race to dismiss more substantial charges against liberal judicial activists.

Consider, for example, law professor Stephen Gillers’s breezy assertion that “the fact that [Judge Taylor] sits on the board of a group that gives money to the plaintiff for an otherwise unrelated endeavor would not in my mind raise reasonable questions about her partiality on the issue of warrantless wiretapping.”  This is the same Gillers who, in the midst of Chief Justice Roberts’s confirmation process, offered the badly flawed opinion that Roberts, as a D.C. Circuit judge, should have recused himself from the Hamdan case because “the public can never know” how the prospect of a Supreme Court nomination might have affected his thinking.  The same Gillers who recklessly opined that Justice Scalia’s participation in a legal seminar sponsored by a group that does not litigate raised serious ethical concerns.  The same Gillers who, in advice that other ethics gurus questioned, advised Justice Breyer that Breyer could take part in a case presenting the question whether the sentencing guidelines are constitutional, notwithstanding Breyer’s own extensive involvement in creating the guidelines.  Anyone notice a pattern?

2005—A front-page Washington Post article reporting on the release of Reagan-administration documents relating to Supreme Court nominee John Roberts carries the inflammatory headline, “Roberts Resisted Women’s Rights.”  In fact, the documents show merely that Roberts had combated highly controversial leftist proposals involving gender quotas and comparable worth.

For anyone who’s read in the mainstream media about how impressive Judge Walker’s opinion supposedly is, or how weak the Prop 8 proponents’ case supposedly was, or any of various other common myths, I present this selective inventory of some of my recent posts for your review:

The Most Egregious Performance Ever by a Federal District Judge [summary of Walker’s amazing course of misconduct], 8/13

Judge Walker and Supposed Lack of “Evidence” of Marriage’s Procreative Purpose [exposing Walker’s distortion about Prop 8 proponents’ supposed failure to offer evidence], 8/11

Judge Walker’s Phony “Finding” Versus Defendants’ Modesty About Predicting the Future [exposing Walker’s distortion about Prop 8 proponents’ not “knowing” how same-sex marriage would harm the institution of marriage], 8/12

Walker’s Gender Follies [on Walker’s astounding claims that “the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes” and that the “genetic relationship between a parent and a child is not related to a child’s adjustment outcomes”], 8/13

Walker’s Misunderstanding of the Opposite-Sex Character of Marriage [record evidence and other authority that Walker simply ignored and claimed didn’t exist], 8/13

Some Reflections on Ninth Circuit Stay Order in Anti-Prop 8 Case, 8/17

Walker’s Continuing Mischief on Videotaping Trial [why Prop 8 proponents’ expert witnesses were right not to trust Walker], 8/16

Why Judge Walker’s Purported Factual Findings Won’t Matter, 8/5

Walker’s Conclusions of Law—With Some Commentary, 8/5

Irrational Bigots [what Walker’s conclusions mean about President Obama and most Americans], 8/5

I recently highlighted that the record evidence and other authority that Prop 8 proponents presented to Judge Walker refutes his astounding claims that “the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes” and that the “genetic relationship between a parent and a child is not related to a child’s adjustment outcomes.”  (Emphasis added.)  In his NRO essay “Making Gender Irrelevant” yesterday, Dennis Prager weighed in with his usual excellent insights, including:

Judge Walker offer[s] studies that purport to prove that it makes no difference whether or not a child has parents of both sexes. These academic studies are as unserious as all those studies of a generation ago that “proved” that boys do not prefer to play with trucks and soldiers but would be just as happy to play with dolls and tea sets, and that girls do not prefer dolls and tea sets but would be just as happy to play with trucks and soldiers.

These newer “studies” of same-sex parents are as valid as the earlier propaganda presented in the guise of scientific studies. Like the boy-girl studies, these were conducted by academics with agendas: to deny male-female differences and to promote same-sex marriage. That many Americans believe these studies — studies that are in any case based on a small number of same-sex couples raising a small number of children, during a short amount of time (a couple of decades), based on the researchers’ own notions of what a healthy and successful young person is — only proves how effectively colleges and graduate schools have succeeded in teaching a generation of Americans not to think critically but to accept “studies” in place of common sense.  [Emphasis added.]

Last December I criticized (here and here) federal district judge Nina Gershon’s ruling that a provision of federal appropriations law that restricts funding of ACORN is an unconstitutional bill of attainder.  I’m pleased to pass along that last Friday the Second Circuit reversed Gershon’s ruling.

Next Thursday evening, August 26, I will be speaking in downtown D.C. on “Justice Kagan, Proposition 8, and the Future of the American Judiciary” as part of ISI’s  “Conservatism on Tap” series for young conservatives.  More info here.

Michael Klarman of Harvard Law, author of an acclaimed history of the legal struggle for civil rights, delivered himself of an op-ed in Sunday’s Los Angeles Times that made me think, not for the first time when reading an article by a law professor, “What exactly do you teach in law school?”  As history, Klarman’s thesis is more than a little pat; as predictive political science, it’s wishful thinking; and as an exercise in legal thinking it’s . . . well, AWOL.

Klarman is clearly a partisan of same-sex marriage, and he doesn’t much care, it seems, whether a right to such marriage can be legitimately derived from the text or principles of the Constitution.  He discusses only whether the timing would be right for the Supreme Court to rule in its favor, given the state of public opinion and the probable impact of the ruling on the political landscape.  Does it need to be said that such considerations–however much they have played a role in judicial decision-making in some historic cases–should not play a role at all?  Evidently it does.  As I say, I hope this article does not exemplify the sort of thing Klarman does in the Harvard classroom.  If so, his students are being robbed of a legal education.

After weighing the odds, Klarman appears to conclude that Justice Anthony Kennedy should go for broke–that he should “win the plaudits of future generations of Americans” by casting the deciding vote in favor of same-sex marriage.  The thesis rests on Klarman’s evident conviction that same-sex marriage is just like civil rights for black Americans, with an eventual decision of Perry v. Schwarzenegger in same-sex marriage’s favor being indistinguishable, as a matter of justice and of public opinion (remember, he says nothing about the Constitution), from Brown v. Board of Education. 

Klarman is too confident about what he thinks public opinion polling reveals.  Remember, in every state in which we have been able to put the question of marriage directly to the people, the tradition of conjugal marriage between a man and a woman has won–every time.  Thanks to the rampant extremism of Judge Vaughn Walker, I think the struggle could be won again in California, if it came to another vote at the polls.

More importantly, though, a ruling in favor of same-sex marriage is likely to play out more like Roe v. Wade than like Brown v. Board of Education.  After Brown, as Klarman notes, there was quite a backlash.  Intense struggle ensued that did not reach a climax until the Congress passed the Civil Rights Act of 1964, a law that transformed American political culture for the better with amazing rapidity.  Note well that Congress did act and American life did change, in ways that vindicated the impulse at work in the Brown case (if not the reasoning that produced or announced the ruling).  Since Roe, by contrast, every act that has passed the Congress on the subject of abortion has been an effort to roll back the effects of the ruling, to hem in its destructive implications, to constrain its reach.  And Americans are more pro-life today than they were in 1973.  The cause of restoring respect for the right to life of the unborn child has been an unquenchable fire in American life, and the issue has dominated our politics–especially the politics of judicial appointments–like no other.  Roe was a disaster for the Supreme Court, a calamity for the Constitution, and a catastrophe for the cause of justice.  Because it was all these things, it was also bad news for our politics in the everyday sense.  Only the undoing of Roe itself can start to undo all these effects.

Should the Supreme Court step unwarily into the firestorm of the same-sex marriage issue, with a ruling that upholds the radicalism of Judge Walker (even if rewritten in less inflammatory terms), it will go down in history not as Brown-like “statesmanship,” but as Roe-like usurpation.  And this for the simple reasons that no plausible connection can be made between same-sex marriage and the principles of the Constitution; no plausibly just case exists for dismantling the natural institution of conjugal marriage and pretending that other couplings or unions are indistinguishable from it; and the American people cannot be chivvied by their “betters” into believing otherwise.  And if the ruling comes down creating this great wrong against the Constitution, Americans will rapidly see another one in its train–the invasion of the rights of religious conscience, which will magnify the backlash tenfold.

Professor Klarman should be careful what he wishes for.  Unless he wishes for culture wars that make our present politics look like a polite game of croquet.

Former Attorney General Ed Meese has a strong op-ed in today’s Washington Post that lambastes Judge Walker’s ruling as “indefensible”:

By refusing to acknowledge binding Supreme Court precedent, substantial evidence produced at trial that was contrary to the holding and plain common sense, the ruling exhibits none of the requirements of a traditional decision. This opinion is arbitrary and capricious, and its alarming legal methodology and overtly policy-driven tenor are too extreme to stand.

And this morning I ran across John Yoo’s fine op-ed in the Wall Street Journal last week, in which Yoo, who “supports gay marriage as a policy matter,” criticizes Walker’s “short-circuit[ing of] the Constitution’s democratic process for the resolution of moral disagreements.”

1.  The Ninth Circuit’s grant of a stay of Judge Walker’s judgment pending appeal provides yet further compelling evidence that Walker has gone utterly bonkers in his egregious mishandling of this case.  Walker’s denial of the stay threatened to dramatically alter the status quo before a higher court could even review his radical ruling.  Walker must have been thoroughly intoxicated by his own bias to imagine that his denial would stand.  

This is the third time that a reviewing court has smacked down Walker in this case.  The first time was an extraordinary writ of mandamus that a Ninth Circuit panel consisting entirely of Clinton appointees issued last year against the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal campaign communications of the Prop 8 sponsors.  The second time was the Supreme Court’s extraordinary (and fully warranted) stay order blocking Walker’s unlawful effort to broadcast his show trial.

To any objective observer, Walker has discredited himself by his manifest bias.  However the reviewing courts ultimately decide this case, I think it’s highly unlikely that Walker’s wild legal analysis or his crazed purported findings will advance his cause—and far more likely that they will do the opposite.  The primary effect of Walker’s gratuitous resort to a trial has been to delay the ultimate outcome of this case by a year or so.

2.  It’s now a safe bet that any Ninth Circuit ruling in favor of the anti-Prop 8 side (on whatever grounds) would also be stayed pending Supreme Court disposition of the case.  Even with the Ninth Circuit’s expedition of briefing and oral argument, it’s highly unlikely that the Supreme Court would rule on the merits of the case before June 2012.  And, factoring in the usual delays in Ninth Circuit opinion-writing and the possibility of en banc proceedings, it’s easy to see how the Supreme Court wouldn’t rule until June 2013 or even June 2014. 

So, whatever the ultimate outcome, don’t expect this case to lead to any same-sex marriages in California any time soon.

3.  Walker’s reversals also call into question the judgment of the supposed dream team of plaintiffs’ lawyers, Ted Olson and David Boies.  When a litigator knows that a trial judge is overeager to do his bidding, it certainly must be tempting to exploit that opportunity to the fullest.  Far from resisting that temptation and keeping appellate review in mind, Olson and Boies have repeatedly egged Walker on.  A year later, and with millions of dollars of attorney’s fees expended, what have they really accomplished for their clients?

Oh, to be sure, there’s propaganda value in the fawning media coverage that Walker’s trial and ruling have received—all the more so as the media have mindlessly parroted Walker’s and Olson’s wild distortions of allegedly (but not in fact) damning concessions by Charles Cooper, counsel for Prop 8 proponents.  (Olson even repeated his falsehood about Cooper’s “I don’t know” statement in the Ninth Circuit brief that he filed over the weekend.) And Olson has presumably relished all the one-sided publicity that he’s received and all his new Hollywood friends.  But despite their massive advantage in resources, Olson and Boies have lost to Cooper and his team on every issue that has been decided by any court other than Walker’s.

4.  The Ninth Circuit’s stay order, in setting forth the expedited briefing schedule on appeal, also states:  “[A]ppellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.  See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).”  Some early commentary seems eager to read into that statement a signal that the Ninth Circuit might be predisposed to find lack of standing.  Such a reading seems to me highly dubious.  For starters, if I were on the motions panel deciding the stay request, I would happily have agreed to the statement.  In addition, it’s far from clear that the motions panel will be the same panel that decides the case, and it’s unlikely that the panel saw any need to probe the standing question deeply. 

On the substance, for the reasons that I’ve indicated (here, here, and in point 2 here and links therein), I doubt very much that the case will be decided on standing grounds.  (Also, as I’ve discussed, it may well be that a determination that appellants lack standing would require that Walker’s judgment be vacated.) 

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2006—In what one expert commentator aptly labels a “transparently political screed,” Michigan federal district judge (and Carter appointee) Anna Diggs Taylor rules that the National Security Agency’s Terrorist Surveillance Program is unconstitutional.  Displaying its usual regard for the truth, the next day the New York Times editorial page praises Taylor’s “careful, thoroughly grounded opinion.”  Alas for the paper’s poor editorialists, the following day the Times runs a front-page article—“Experts Fault Reasoning in Surveillance Decision”—that reports that “[e]ven legal experts who agreed with [Taylor’s] conclusion” say that her opinion “overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.”  (How’s that for “careful” and “thoroughly grounded”?)  Even Harvard law professor Laurence Tribe, in the course of self-indulgently criticizing Taylor’s critics for self-indulgent criticism, complains that her opinion “seems almost to have been written more to poke a finger in the President’s eye than to please the legal commentariat or even, alas, to impress an appellate panel.”  But Tribe concludes that “her bottom line is very likely to survive appellate review.”

In July 2007, the Sixth Circuit overturns Taylor’s ruling, as a divided panel rejects her threshold determination that the plaintiffs had standing to pursue their claims.

Sparing the Supreme Court the burden of doing so, a Ninth Circuit motions panel (consisting of two Clinton appointees, Michael Hawkins and Sidney Thomas, and one Reagan appointee, Edward Leavy) has unanimously granted Prop 8 proponents’ (and Imperial County’s) motion for a stay of Judge Walker’s anti-Prop 8 judgment pending appeal.  Evidently recognizing that Walker’s effort to alter the status quo was so manifestly beyond the bounds of reasonable judgment, the Ninth Circuit panel stated in one simple sentence that it was granting the motion.  It also ordered that the appeal be expedited, with oral argument to take place during the week of December 6.

This is the third major smackdown that Walker has earned in this case.  I’m very much looking forward to a fourth.

Back in January, Judge Walker originally arranged for the videotaping of the anti-Prop 8 trial as part of his unlawful plan to broadcast the trial.  Walker’s broadcasting plans were ultimately thwarted by the extraordinary (and fully warranted) stay order by the Supreme Court in an opinion that was plainly a stinging rebuke of Walker’s lack of impartiality:

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

As the Court pointed out, “Some of [Prop 8 proponents’] witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment.”  (Slip op. at 13.)

After the Court blocked Walker’s broadcasting, Walker, over the objections of Prop 8 proponents, proceeded with his plans to videotape the trial.  The reason offered by Walker for his continued videotaping was his own “use in chambers” of the videotape:   “I think it would be quite helpful to me in preparing the findings of fact to have that recording.”  (Trial transcript at 754:18-20, 755:3-4 (Jan. 14, 2010.)

As Prop 8 proponents informed Walker (see Walker’s final opinion, at 35-36), several of their expert witnesses refused to testify because Walker continued the videotaping.  And who could blame them?  Given Walker’s remarkably biased course of conduct even as of that date, there was little reason for anyone to trust his representation that the videotapes would be only for his own “use in chambers.”  Indeed, it’s difficult to take seriously Walker’s contention that the videotape “would be quite helpful … in preparing the findings of fact.”  The trial transcript was obviously a superior resource for ease of review, and it seems unlikely that Walker would ever have had cause, say, to review a witness’s videotaped testimony to assess the witness’s demeanor.  (Imagine Walker to himself:  “Ah, yes, plaintiffs’ expert didn’t even blush when she contended that gender and procreation have never been at the core of traditional marriage.  How compelling!”)

As it happens, Walker has amply vindicated the distrust of the witnesses who refused to testify.  He broke his word that the videotape would be used only for his own in-chambers use when he, out of the blue, issued an order stating that a copy of the video would be made available (subject to a protective order) to any party who wished to use part of it during closing arguments.  Copies of the video were then made available to plaintiffs.  After closing arguments, Prop 8 proponents requested that plaintiffs return the videos to the court, but plaintiffs refused.  Prop 8 proponents then asked Walker to order plaintiffs to return the videos, but Walker rejected their request and affirmatively authorized plaintiffs to “retain their copies of the trial recording.”  (Final opinion, at 4.)  It’s reasonable to expect that, thanks to Walker and notwithstanding the protective order, the trial video or edited clips from it will one day suddenly appear on the Internet.

Notwithstanding all this, Walker has the gall to contend that Prop 8 proponents “failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated.”  (Final opinion, at 36.)  In fact, Prop 8 proponents informed Walker that their witnesses were refusing to testify because he continued videotaping the trial.  (See final opinion, at 35-36.)  And given Walker’s actions, the witnesses were correct to believe that the “potential for public broadcast” had not been eliminated.

In an article in the new issue of the Weekly Standard, law professor Robert F. Nagel properly sees in Judge Walker’s anti-Prop 8 opinion a stark illustration of the broader proposition that “judicial application of the rationality test can be a parody of intelligent analysis.”  His summation:

Despite all its cerebral and legalistic trappings, Judge Walker’s opinion is not an exercise in some detached and impartial form of rationality. Like the law it invalidated, his opinion is a reflection of aspirations, fears, guesses, and moral judgments. In political debate, people generally make no pretense about the controversial and uncertain nature of their arguments. Most jurists, in contrast, believe that judicial application of the “rationality test” is different from political argumentation. It is thought to be a high intellectual exercise that constrains the worst excesses of political decision making. What is at least as frightening as the unruly world of politics is the supercilious and resolutely self-satisfied world occupied by judges like Vaughn Walker.

I’ve already outlined how Judge Walker’s delay in ruling on, and ultimate denial of, Imperial County’s motion to intervene as a defendant seems to have been designed to damage the prospects that his final judgment against Prop 8 would ever be subject to appellate review.  I’d like to develop the point more thoroughly and tie the matter to proper resolution of the Prop 8 proponents’ pending request to the Ninth Circuit that Walker’s judgment be stayed pending appeal.

On December 15, 2009, the County of Imperial, its Board of Supervisors, and its deputy clerk/deputy commissioner of civil marriages moved to intervene as defendants in the anti-Prop 8 case.  (Although it’s often convenient to refer to them collectively as “Imperial County,” it’s sometimes important to address them separately.)  In their motion to intervene, the Imperial County entities highlighted that the case “presents the truly extraordinary situation of a constitutional provision without a single governmental defender.”  Noting that whether Prop 8 proponents would have Article III standing to appeal had “been called into question,” they emphasized that the “momentous issues in this case—which have statewide and potentially national implications—surely warrant review and definitive resolution by the Court of Appeals and perhaps even the Supreme Court.” 

The Imperial County entities identified their “significantly protectable interests that satisfy the requirements for intervention.”  Among those interests were those of the deputy clerk/deputy commissioner of civil marriage, who “issues marriage licenses and performs marriages and thus will be directly affected in the performance of [her] duties if Proposition 8 is ruled unconstitutional and the state officials bound by that ruling seek to compel statewide compliance with it (as there is every reason to expect that they would).”  They pointed out, among other things, that the plaintiffs in the case had “named two county clerks as defendants in this action” (see Complaint at ¶¶ 17, 18) and that “[c]ounty clerks are frequently defendants in same-sex marriage litigation.”

Walker somehow saw fit not to rule on Imperial County’s motion until the same day that he issued his final judgment.  His odd and unexplained delay prevented Imperial County from pursuing an expedited appeal that, if successful, would have made Imperial County and its officers intervenor-defendants by the time of Walker’s final judgment.

More momentously, Walker denied Imperial County’s motion.  Among other things, he ruled that the fact that the county deputy clerk’s duties relating to marriage were “ministerial rather than discretionary” somehow meant that she did not have a “significant protectable interest” in the litigation.  (He also ruled that the Board of Supervisors’ supervisory responsibility over the deputy clerk somehow did not extend to her marriage-related duties.)

Walker’s reasoning seems contrived and makes no sense.  As Prop 8 proponents discuss in their emergency motion for a stay (see footnote 9 on pp. 23-24), the duties of the county deputy clerk are directly controlled by operation of California law.  County clerks have standing to challenge the laws governing their official actions, and it makes no sense to say that they don’t have standing to defend those laws.  Indeed, apart from the fact that plaintiffs themselves properly sued two county clerks in this very case, courts have held that county clerks are necessary parties in cases challenging the constitutionality of state marriage laws.  Further, Walker is simply wrong to state that “Imperial County’s clerk has no legitimate reason to be confused and will not be subjected to conflicting duties” if the state defendants order her to disregard Prop 8. 

It’s also worth noting that the state defendants did not oppose Imperial County’s motion to intervene.  Walker twice disparages the state defendants’ non-opposition as “cursory,” but the state defendants evidently recognized that they had no legitimate grounds to oppose the motion.

Walker also contends in his order that “Imperial County lacks independent Article III standing to defend Proposition 8 on appeal.”  (By “Imperial County,” he’s referring collectively to the three sets of proposed Imperial County intervenors.)  His contention rests on his same mistaken assertion about the county clerk’s supposed lack of a protectable interest (and the Board of Supervisors’ supposed lack of supervisory authority over her). 

In sum, Prop 8 proponents are right that Walker’s order “is patently incorrect and almost certain to be reversed on appeal”—almost certain, that is, if the Ninth Circuit were not the notoriously lawless court that it is.

Let me conclude with a couple of observations:

1.  Any remotely responsible district judge who was presiding over a potential landmark case would take all steps to ensure that his decision would be subject to full appellate review.  But Walker, well aware that issues had already been raised about Prop 8 proponents’ standing to appeal, instead contrived feeble reasons to deny Imperial County’s motion to intervene.  And he waited nearly eight months to deny the motion, when a prompt denial would have preserved the possibility that Imperial County could have obtained a timely reversal on appeal.

Compare, by contrast, Walker’s perfunctory order granting the motion of the City and County of San Francisco to intervene as plaintiffs.

2.  For reasons I have discussed (see also Jonathan Adler’s Volokh Conspiracy post), I believe that Prop 8 proponents have standing to appeal Walker’s final judgment.  I’ll note further that, in addition to the standing argument that I excerpted, Prop 8 proponents have also argued that Imperial County’s independent standing to appeal (per its notice of appeal) both Walker’s order denying intervention and Walker’s final judgment renders irrelevant whether Prop 8 proponents would have independent standing to appeal.

What this means is that, for purposes of the stay request, the Ninth Circuit and, if necessary, the Supreme Court have compelling grounds to reject the central rationale (Prop 8 proponents’ purported lack of standing on appeal) on which Walker refused to stay his judgment pending appeal.

In addition, I’ll note that Imperial County has filed in the Ninth Circuit its joinder in Prop 8 proponent’s pending stay motion in the Ninth Circuit.

1996—One reason that the Ninth Circuit is so dysfunctional is that it fails to make responsible use of its en banc procedures to override panel rulings that conflict with Supreme Court precedent.  In his opinion in Wicklund v. Salvagni, Judge Stephen Reinhardt rules that the judicial-bypass provision of a Montana statute requiring parental notice for minors’ abortions is unconstitutional under the Ninth Circuit’s 1991 ruling in Glick v. McKay.  Reinhardt rejects the argument that the Glick ruling was contrary to Supreme Court precedent and does not raise the possibility of en banc review.  

In a per curiam ruling (in Lambert v. Wicklund), the Supreme Court, seeing no need for briefing or oral argument, unanimously reverses the Ninth Circuit holding on the ground that it is “in direct conflict with our precedents.” 

1999—By a vote of 4 to 3, the Ohio supreme court rules (in State ex rel. Ohio Academy of Trial Lawyers v. Sheward) that tort-reform legislation violates separation-of-powers principles and the ever-malleable single-subject rule.

1938—Stephen Gerald Breyer is born in San Francisco.  An expert on regulation and a professor at Harvard Law School, Breyer serves from 1979 to 1980 as chief counsel to Teddy Kennedy on the Senate Judiciary Committee.  His reward:  On November 13, 1980—after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the new Senate—Carter nominates Breyer to a newly created seat on the First Circuit.  His nomination is promptly confirmed.  In 1994 President Clinton appoints Breyer to replace retiring justice Harry A. Blackmun on the Supreme Court.  (See This Day for July 29, 1994.)  His jurisprudence has been aptly described by one perceptive critic as “judicial willfulness masquerading as judicial deference.”

In an article in Time magazine, UC Davis law professor Vikram Amar (a former Blackmun clerk and not a conservative) raises the same possibility that I did:

[T]o add another twist, at least one constitutional-law scholar in California is suggesting that by trumpeting the issue of standing, Walker has opened a hornet’s nest he may have been better off leaving undisturbed. “If the proponents don’t have standing to appeal, then it’s entirely plausible that the courts will rule that they did not properly have standing to go to trial,” Vikram Amar, a law professor at the University of California at Davis, told TIME Thursday evening. “This is an issue he glossed over when he allowed them to intervene in the trial.”

Amar says that if the Ninth Circuit agrees with Walker that the proponents don’t have standing to appeal, the judges may well decide they shouldn’t have been allowed to intervene in the case at all. If they do, he says, they could decide to vacate the trial entirely, sending it back to Walker to start over.  [Emphasis added.]

On NRO here.

Consider the totality of Judge Walker’s conduct in the anti-Prop 8 case:

Let’s start with Walker’s initial case-management conference when he determined, to the surprise even of plaintiffs’ lawyer Ted Olson, that the case couldn’t be resolved, one way or the other (as other courts have done in similar cases), as a matter of law but would instead require extensive discovery into supposed factual issues.

Let’s continue with Walker’s insane and unworkable inquiry into the subjective motivations of the more than seven million Californians who voted in support of Prop 8. 

Take the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal campaign communications of the Prop 8 sponsors.  That ruling was overturned, in part, by an extraordinary writ of mandamus issued by a Ninth Circuit panel consisting entirely of Clinton appointees.  But the portion that survived enabled plaintiffs to conduct scorched-earth discovery that leveraged the massive resource advantage provided by their lavish Hollywood backers.  And the sweeping judicial invasion of the core political speech rights and associational rights of Prop 8 supporters had the added benefit, from Walker’s perspective, of intimidating opponents of same-sex marriage from ever daring to exercise those rights again.

Then there’s Walker’s resort to procedural shenanigans and outright illegality in support of his fervent desire to broadcast the trial, in utter disregard of (if not affirmatively welcoming) the harassment and abuse that pro-Prop 8 witnesses would reasonably anticipate.  Walker’s decision was ultimately blocked by an extraordinary (and fully warranted) stay order by the Supreme Court in an opinion that was plainly a stinging rebuke of Walker’s lack of impartiality:

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

Then Walker presided over a parade of anti-Prop 8 witnesses at trial who gave lengthy testimony, only a tiny fraction of which was relevant to any sound understanding of the issues in dispute—and all of that could have been in the form of expert or documentary submissions.  And—surprise, surprise—every single one of plaintiffs’ “expert” witnesses is an activist for same-sex marriage whose “expert” testimony was just a repackaging of their political advocacy.

Oh, and let’s not forget that all along Walker apparently failed to disclose to the parties basic personal facts that would have enabled them to assess whether his impartiality in the matter might reasonably be questioned.

Then there’s Walker’s crazed—and, as one same-sex marriage advocate put it, “radical”—ruling on final judgment.  That ruling ignored binding Supreme Court and Ninth Circuit precedent, concocted absurd factual findings, and grossly misstated the state of the record on key points.

And, just yesterday, Walker’s refusal to stay his judgment pending appeal, the latest step in his gamesmanship to try to deprive Prop 8 proponents of their appeal rights and to avoid effective appellate review of his shenanigans.

Walker’s course of conduct would be sufficient cause for national scandal in any case.  That it comes in a case that aims to radically remake the central social institution of American society makes it utterly intolerable.

I can’t imagine that any federal district judge has ever committed more egregious and momentous acts of malfeasance in a case.

Among Judge Walker’s astounding assertions are his claims that “the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes” (slip op. at 127 (emphasis added); see also purported finding of fact # 70) and that the “genetic relationship between a parent and a child is not related to a child’s adjustment outcomes” (slip op. at 96 (emphasis added)).  In their stay motion to the Ninth Circuit, Prop 8 proponents summarize in a long footnote just a small part of the record evidence and other authority that they presented to Walker in refutation of such claims.  The rest of this post is excerpted from that footnote.  “DIX” references are to defendants’ trial exhibits.  (I’ve deleted some citations.)

[T]he district court’s startling conclusion that a child does not benefit from being raised by its own married mother and father, and that indeed it is irrational to believe otherwise, is plainly unwarranted.  The law “historically … has recognized that natural bonds of affection lead parents to act in the best interests of their children.”  Parham v. J.R., 442 U.S. [584,] 602 [(1979)]; see also Gonzalez v. Carhart, 550 U.S. 124, 159 (2007) (“Respect for human life finds an ultimate expression in the bond of love the mother has for her child.”); cf. United Nations Convention on the Rights of the Child, Art. 7 (“as far as possible, [a child has the right] to know and be cared for by his or her parents”).

Indeed, “[a]lthough social theorists . . . have proposed alternative child-rearing arrangements, none has proven as enduring as the marital family structure, nor has the accumulated wisdom of several millennia of human experience discovered a superior model.”  Courts have thus repeatedly upheld as rational the “commonsense” notion that “children will do best with a mother and father in the home.” [citations omitted] Cf. Bowen v. Gilliard, 483 U.S. 587, 614 (1987) (Brennan, J., dissenting) (“the optimal situation for the child is to have both an involved mother and an involved father”).

This widely shared and deeply engrained view is backed up by social science.  See, e.g., Kristin Anderson Moore, et al., Marriage From a Child’s Perspective, Child Trends Research Brief at 6 (June 2002) (*DIX26) (“Research clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage.”); id. at 1-2 (“[I]t is not simply the presence of two parents, … but the presence of two biological parents that seems to support children’s development.”); Wendy D. Manning & Kathleen A. Lamb, Adolescent Well Being in Cohabiting, Married, & Single-Parent Families, 65 J. Marriage & Fam. 876, 890 (2003) (DIX21) (“The advantage of marriage appears to exist primarily when the child is the biological offspring of both parents.”); see also Affidavit of Professor Steven Lowell Nock, Halpern v. Attorney General of Canada, Case No. 684/00 (Ont. Sup. Ct. Justice 2001) (DIX131, attached as Exhibit C) (detailing flaws in same-sex parenting scholarship and studies). 

In light of all of this evidence, the district court’s conclusions that “the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes,” and that the biological bond between a child and its mother and father “is not related to a child’s adjustment outcomes,” are simply unsupportable.

As Prop 8 proponents argue, Judge Walker’s ruling is contrary to the governing Supreme Court precedent of Baker v. Nelson (1972), which Walker’s ruling doesn’t even mention:

In Baker v. Nelson, 409 U.S. 810 (1972), the Supreme Court unanimously dismissed, “for want of [a] substantial federal question,” an appeal from the Minnesota Supreme Court presenting the same questions at issue here: whether a State’s refusal to authorize same-sex marriage violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The same-sex couple in Baker placed primary reliance on Loving v. Virginia, 388 U.S. 1 (1967), which had been decided five years earlier. The Baker Court’s dismissal was a decision on the merits that is binding on lower courts on the issues presented and necessarily decided, Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam), and its precedential value “extends beyond the facts of the particular case to all similar cases,” Wright v. Lane County Dist. Court, 647 F.2d 940, 941 (9th Cir. 1981). Plaintiffs’ claims are the same as those rejected in Baker, and the district court’s decision thus conflicts with a binding Supreme Court authority.

The point here is not that the Supreme Court must give full precedential weight to Baker v. Nelson.  Nor does Prop 8 proponents’ argument rest on any prediction about what the Court will do if and when it revisits the questions that it dismissed in Baker.  Rather, the point is that, unless and until the Supreme Court revisits the questions, the lower federal courts are obligated to give Baker precedential value.

This is a point on which I would think all nine justices would agree.  Any other approach would invite all sorts of mischief by lower-court judges.

To be sure, there will be times when intervening Supreme Court cases make clear that previous rulings no longer stand.  But that’s certainly not the case on same-sex marriage, as Justice Kennedy’s majority opinion in Lawrence v. Texas expressly stated that that case did “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”  One can argue, as Justice Scalia did in dissent in Lawrence, that the majority’s approach in that case, if extended to marriage, would lead to invention of a federal constitutional right to same-sex marriage.  But it’s a very different matter for a lower-court judge to regard Lawrence as a license to ignore Baker (which evidently is what Walker did).

As I’ve outlined, Judge Walker somehow failed to identify the opposite-sex character of marriage as one of the core characteristics of marriage throughout American history.  In their stay motion to the Ninth Circuit, Prop 8 proponents restate some of the record evidence and other authority that they presented to Walker—and that he simply ignored and claimed didn’t exist.  The rest of this post (continuing below the fold) is excerpted from the stay motion.  “DIX” references are to defendants’ trial exhibits.  (I’ve deleted some citations and changed the “all caps” punctuation in others.)

In the words of highly respected anthropologist Claude Levi-Strauss, “the family—based on a union, more or less durable, but socially approved, of two individuals of opposite sexes who establish a household and bear and raise children—appears to be a practically universal phenomenon, present in every type of society.” The View from Afar 40-41 (1985) (Trial Exhibit DIX63); see also G. Robina Quale, A History of Marriage Systems 2 (1988) (DIX79) (“Marriage, as the socially recognized linking of a specific man to a specific woman and her offspring can be found in all societies.”).

The opposite-sex character of marriage has always been understood to be a central and defining feature of this institution, as uniformly reflected in dictionaries throughout the ages. Samuel Johnson, for example, defined marriage as the “act of uniting a man and woman for life.” A Dictionary of the English Language (1755). Subsequent dictionaries have consistently defined marriage in the same way, including the first edition of Noah Webster’s, and prominent dictionaries from the time of the framing and ratification of the Fourteenth Amendment.  [citations omitted]

Nor can this understanding plausibly be dismissed, as the court below did, as nothing more than an “artifact of a time when the genders were seen as having distinct roles in society and in marriage.” Rather, it reflects the undeniable biological reality that opposite-sex unions—and only such unions—can produce children. Marriage, thus, is “a social institution with a biological foundation.” Levi-Strauss, “Introduction,” in Andre Burguiere, et al. (eds.), 1 A History of the Family: Distant Worlds, Ancient Worlds 5 (1996). Indeed, an overriding purpose of marriage in every society is, and has always been, to approve and regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society. In particular, through the institution of marriage, societies have sought to increase the likelihood that children will be born and raised in stable and enduring family units by the mothers and fathers who brought them into this world.

[Click “Full Story” below to continue reading this post]

Here is an excerpt from the Prop 8 proponents’ argument on their standing to appeal:

Proponents have standing to appeal the district court’s judgment because they have “authority under state law,” Karcher v. May, 484 U.S. 72, 82 (1987), to defend the constitutionality of an initiative they have successfully sponsored “as agents of the people of [California] . . . in lieu of public officials” who refuse to do so, Arizonans for Official English v. Arizona, 520 U.S. 43, 65 (1997). In Karcher, the Supreme Court held that the President of the New Jersey Senate and the Speaker of the New Jersey General Assembly had standing to defend the constitutionality of a state statute when “neither the Attorney General nor the named defendants would defend the statute,” because New Jersey law authorized them to do so. In particular, in other cases the “New Jersey Supreme Court ha[d] granted applications of the Speaker of the General Assembly and the President of the Senate to intervene as parties-respondent on behalf of the legislature in defense of a legislative enactment.”

Here also, the California Supreme Court has granted the application of initiative proponents to defend initiatives they have sponsored but the State Attorney General and other public officials refuse to defend—indeed it has done so with respect to these Proponents and Proposition 8. California law thus allows proponents to defend initiatives they have sponsored when government officials “might not do so with vigor” in order “to guard the people’s right to exercise initiative power, a right that must be jealously defended by the courts.” Building Indus. Ass’n v. City of Camarillo (Cal. 1986). Thus, Proponents may directly assert the State’s interest in defending the constitutionality of its laws, an interest that is indisputably sufficient to confer appellate standing. See, e.g., Maine v. Taylor, 477 U.S. 131, 136-37 (1986); Diamond v. Charles, 476 U.S. 54, 62 (1986).

California law thus distinguishes this case from Arizonans for Official English v. Arizona, 520 U.S. 43 (1997). In that case, the Ninth Circuit held that proponents of an Arizona initiative had standing to appeal a decision striking down the measure. Id. at 58. In dicta, the Supreme Court expressed “grave doubts” about proponents’ standing. Id. at 66; see also id. (“we need not definitively resolve the issue”). Citing Karcher, the Court acknowledged that it had “recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests,” but explained that it was “aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” Id. at 65. Here, by contrast, settled principles of California law, including but not limited to the very same type of legal authority relied upon by Karcher—a State Supreme Court decision permitting intervention—establishes Proponents’ authority “as agents of the people of Arizona to defend, in lieu of public officials,” the constitutionality of Proposition 8.

Here (and below the fold—click “Full Story”) is an extended excerpt (some citations omitted) from the introduction of Prop 8 proponents’ motion.  (For ease of reading on the screen, I’ve also broken up some long paragraphs.)

Proposition 8, a voter-initiated amendment to the California Constitution, reaffirms that “[o]nly marriage between a man and a woman is valid or recognized in California.” This is the same understanding of marriage that prevailed in every State of the Union until just six years ago and still prevails in all but five states and the District of Columbia. Indeed, until quite recently “it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.” Hernandez v. Robles (N.Y. 2006) (plurality).

The district court nevertheless held that the age-old, all-but-universal opposite-sex definition of marriage embraced by Proposition 8 violates the fundamental due process right to marry rooted in “the history, tradition and practice of marriage in the United States.” It also concluded that … “Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause,” because the traditional definition of marriage “is simply not rationally related to a legitimate state interest.”…

[T]hough the district court held that the venerable definition of marriage as the union of a man and a woman violates the Due Process and Equal Protection Clauses of the Federal Constitution, every state or federal appellate court to address the issue—including the Supreme Court in Baker v. Nelson, 409 U.S. 810 (1972), and this Court in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)—has consistently rejected this conclusion.…

And again, contrary to the district court’s conclusion below, this Court, and the overwhelming majority of other courts, both state and federal, to address the issue have concluded that the opposite-sex definition of marriage rationally serves society’s interest in regulating sexual relationships between men and women so that the unique procreative capacity of those relationships benefits rather than harms society, by increasing the likelihood that children will be born and raised in stable family units by the mothers and fathers who brought them into this world.

The district court did not confront the Supreme Court’s holding in Baker, binding authority from this Court, or any of the well established lines of authority opposed to its conclusions. It did not distinguish them. It did not explain why it believed they were wrongly decided. It did not even acknowledge their existence. It simply ignored them.

Yesterday evening Prop 8 proponents filed with the Ninth Circuit an emergency motion for a stay of Judge Walker’s anti-Prop 8 judgment pending appeal.  In a series of posts, I’ll highlight various arguments in the motion, both to shed light on the strong case for a stay and, more broadly (but also of course relatedly), to expose more of the glaring defects in Walker’s wild ruling.  (If and when the motion is available online, I’ll link to it.)

It strikes me as intuitively powerful that an interest under state law that is sufficient to enable a party to intervene as of right as a defendant in a federal case is also sufficient to enable that defendant to pursue an appeal of a ruling that is adverse to that interest. 

As I read it, the case that Judge Walker invokes to call into question Prop 8 proponents’ standing to appeal—Arizonans for Official English v. Arizona (1997)—supports the principle that a party’s standing to defend a ballot proposition in federal district court is co-extensive with that party’s standing to appeal an adverse decision on that ballot proposition.  In that case, the Court stated that “Standing to sue or defend is an aspect of the case or controversy requirement” and that it was “aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.”  (Emphasis added.)  It was on that basis that the Court expressed its “grave doubts” whether the initiative sponsors had “standing under Article III to pursue appellate review.” 

In other words, Judge Walker shouldn’t be able to have it both ways.  If Prop 8 proponents had an interest under state law sufficient to enable them to intervene as of right to offer the only actual defense of Prop 8 (and California law may well be different on this matter from what Arizona law was), then they have a right to pursue an appeal of his adverse judgment.  And having decided that Prop 8 proponents had a right to intervene, Walker himself would seem obligated by law-of-the-case principles to determine that they have a right to pursue an appeal.  The central ground on which he denied the motion for stay of the judgment pending appeal thus seems unsound.

Conversely, if Prop 8 proponents don’t have standing to appeal Walker’s ruling, then it ought to follow that they also had no authority to intervene as of right as defendants to defend Prop 8.  And, given the state defendants’ refusal to defend Prop 8, that would mean that there were no proper parties who were genuinely adverse to plaintiffs.  It may well be (though the question, I acknowledge, presents complications) that, under the Supreme Court’s ruling in Moore v. Charlotte-Mecklenburg Board of Education (1971), the case would therefore have lacked the requisite adverseness to satisfy the “case or controversy” requirement under Article III of the Constitution—and that Judge Walker would have been obligated to dismiss plaintiffs’ case (rather than proceed to judgment on the merits).  (In the Arizonans case, the governor defended the case in the district court, but then chose not to appeal, so any doubts about the standing of the initiative sponsors to pursue an appeal wouldn’t affect the existence of a “case or controversy” in the district court.)

(Thanks to Hashim Mooppan of Jones Day for calling Moore to my attention.)

Update (10:30 p.m.):  I’ve made some tweaks to the original version of this post.

It would seem that Judge Walker has been gaming for some time to try to deprive Prop 8’s proponents of a right to appeal.   (As I hope to explain soon, I don’t think he’ll succeed.)

Last December, Imperial County and its officers moved to intervene in the case as defendants (that is, to support Prop 8).  Walker somehow didn’t act on their motion until last week, when he denied it in a separate order that he issued the same day as his final ruling. 

In his denial of Prop 8 proponents’ stay request, Walker relies heavily on the fact that no state defendant has yet filed an appeal of his final ruling.  If a governmental state defendant with standing—such as Imperial County—had done so, he appears to concede, it would be clear that the Ninth Circuit would have jurisdiction to reach the merits of the Prop 8 proponents’ appeal. 

It is Walker’s denial of Imperial County’s motion to intervene that might impair prevented Imperial County from directly appealing Walker’s final ruling.  (Instead, Imperial County has filed a notice of appeal of Walker’s denial of its motion to intervene.)  And his long delay in denying that motion prevented Imperial County from pursuing an expedited appeal that, if successful, would have made Imperial County and its officers intervenor-defendants by the time of Walker’s final judgment.

Update (8/16):  As the strikethroughs of deletions and underlining of additions indicate, I’ve made some tweaks to reflect the facts that (1) Walker also contends that Imperial County and its officers wouldn’t have Article III standing on appeal, and (2) Imperial County’s notice of appeal applies both to the denial of the motion to intervene and to the final judgment.

Unbelievable:  Judge Walker has denied the motion of Prop 8 proponents for a stay of his wild ruling against Prop 8 (with the exception of a stay for a limited time—until 5 p.m. on August 18—to enable proponents to seek Ninth Circuit review of the denial).  In other words, he’s trying to implement same-sex marriage immediately—not only in the face of the more than seven million California citizens who voted for Prop 8 but also in an obvious effort to undermine the availability of appellate review as a meaningful corrective.

The heart of Walker’s rationale is that Prop 8 proponents may not even have standing to appeal.  But if they don’t have standing to appeal, how did they have a right to intervene as defendants to present the defense of Prop 8?  Why didn’t Walker simply enter a stipulated judgment (update: or more properly, as I hope to discuss more fully soon, dismiss plaintiffs’ case) when the state defendants abandoned their duty to defend Prop 8?  The obvious reason is that state law recognizes that a proposition’s proponents have authority to defend the proposition, lest government officials subvert the ultimate power that the proposition process places in the people.  That authority necessarily must confer standing to appeal an adverse decision.  (Update:  I hope to amplify this point soon.)

Walker’s action screams for reversal by the Ninth Circuit.  If that (alas, notoriously unreliable) court refuses to impose a stay pending appeal, then it will be up to the Supreme Court to, once again, put an end to Walker’s lawlessness—this time, I would think, unanimously.  (Yes, I think that even those justices who may be inclined to invent a federal constitutional right to same-sex marriage will be appalled by Walker’s disregard of precedents, his absurdly biased “factfinding,” and his effort to thwart meaningful appeal.)

I expect that Prop 8 proponents will file soon with the Ninth Circuit a motion for a stay pending appeal.  I will plan to track developments closely and report on them here.

Judge Walker evidently hasn’t been able to meet his promised deadline of noon Pacific time (3 p.m. Eastern time) for his ruling on the Prop 8 proponents’ request for a stay of his judgment pending appeal.

Quite remarkable:  Walker is supremely confident (“beyond dispute”) in predicting the impact that same-sex marriage will have on the institution of marriage over the long term.  But he couldn’t even accurately predict yesterday by what time he’d have his ruling ready today

As I’ve noted, in his criticism of Judge Vaughn Walker’s “radical” ruling against Prop 8, Jonathan Rauch, a leading supporter of same-sex marriage, soundly lambastes Walker’s absurd contention (slip op. at 125-126 (emphasis added)) that “the evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive effect on the institution of marriage.”  As Rauch observes, “that kind of sweeping certainty” about the future doesn’t fit “an unpredictable world.”

When the reader looks to the purported finding of fact (# 55) that Walker cites in support of this proposition, the assertion is even more remarkable.  Let’s set aside the fact (as Orin Kerr has discussed) that this prediction about the future can’t fairly be called a finding of fact and will certainly be entitled to no deference on appeal.  The evidence that Walker cites is trivial:  first and foremost, data supposedly showing that annual rates for marriage and divorce in Massachusetts didn’t change during the four years following judicial imposition of same-sex marriage in Massachusetts.  A grand total of four years of data limited to annual marriage and divorce rates!  Only an idiot or a hardened ideologue would conclude on that basis that it’s “beyond debate” that same-sex marriage won’t have a negative effect on the institution of marriage.  (And, as I discuss below, Walker’s finding contradicts the testimony of plaintiffs’ own expert.)

Relatedly, it’s worth noting that Judge Walker and plaintiffs’ lawyer Ted Olson have been shamelessly distorting the modest acknowledgment by Prop 8 proponents’ lawyer Charles Cooper last October (at the summary-judgment hearing) that he didn’t “know” how same-sex marriage would harm the institution of marriage: 

1.  Let’s first consider the exchange in context (emphasis added):

Walker:  “I’m asking you to tell me how it [same-sex marriage] would harm opposite-sex marriages.”…

Cooper:  “Your Honor, my answer is:  I don’t know.  I don’t know.

[More back and forth]

Cooper:  “Well,  your Honor, by—by saying that the state and its electorate are entitled, when dealing with radical proposals for change to a bedrock institution such as this, to move with incrementally, to move with caution, and to adopt a wait-and-see attitude.  Keep in mind, your Honor, this same-sex marriage is a very recent innovation.  Its implications of a social and cultural nature, not to mention its impact on marriage over time, can’t possibly be known now.”

A few minutes later, when Walker said that “I understand your answer that question”—the question of the harm that same-sex marriage would inflict on the institution of marriage—“is you don’t know,” Cooper responded:

Well, your Honor, it depends on things we can’t know. This is a — this is a — that’s my point.  And the people of the State of California were entitled to step back and watch this experiment unfold in Massachusetts and the other places where it’s unfolding, and to assess whether or not — oh, our concerns about this – about this new and — and heretofore unknown marital union have either been confirmed by what’s happening in marriage in  Massachusetts, or perhaps they’ve been completely allayed; but my point is: California was entitled not to follow those examples, and to wait and see. That’s the whole purpose of federalism.

2.  At closing argument, Cooper reiterated the impossibility of predicting the future on this point and highlighted that plaintiffs’ own expert had said the same:

The second point, Your Honor, in addition that redefining it [marriage] would inevitably change it, is that it is not possible to predict with certainty and confidence what that change will beget. It seems simply undeniable that a change that is as profound as this one, I would submit undeniably would be, would have some consequences.  But — and the plaintiffs think that the consequences dominantly will be good consequences. And, again, we respect that point of view, but it’s not something that they can possibly prove. And their own expert agrees. Professor Cott, again, said this:  “The consequences of same-sex marriage are impossible to know because no one predicts the future that accurately.”  [3089:13-25.]

So Walker’s purported finding of fact is not only not meaningfully supported by the evidence that he cites; it’s contradicted by the testimony of plaintiffs’ own expert.

3.  To compound the farce, Walker, in his opinion (slip op. at 9), somehow treats Cooper’s commonsense acknowledgement of the impossibility of predicting the future as some sort of concession that somehow impairs the ability of Prop 8 proponents to argue that same-sex marriage will have harmful consequences.  But the relevant question under rational-basis review is whether it’s reasonable to fear that same-sex marriage might have some of those consequences, not whether it can somehow be shown “beyond doubt” that it will.  (And even under a more demanding standard of review, Cooper’s simple modesty about his own ability to predict the future wouldn’t amount to any sort of meaningful concession.)

In sum:  Walker’s treatment of this point reflects brazen dishonesty or stunning incompetence, or some combination of the two.  It is a microcosm of his entire ruling.

4.  Meanwhile, Ted Olson has been purveying the same distortion.  To cite just a couple of examples:  In his Newsweek essay feebly making the case for a constitutional right to same-sex marriage, Olson stated:

Tellingly, when the judge in our case asked our opponent to identify the ways in which same-sex marriage would harm heterosexual marriage, to his credit he answered honestly: he could not think of any.

And at closing argument, Olson contended that proponents’ acknowledgment of the unpredictability of the future somehow meant that plaintiffs should win:

That is the essence of the case as it comes to the end of the trial and to the closing arguments. They just don’t know whether same-sex marriage will harm the institution of  heterosexual marriage.  [2968:2-5]

Some time between noon and 3 p.m. Eastern time today (between 9 a.m. and noon in California), Judge Walker will enter an order on the Prop 8 proponents’ request that he stay his anti-Prop 8 judgment pending appeal.  (That information circulated by e-mail from the court’s public affairs office.) 

It’s amazing to contemplate that Walker might have the audacity to deny the stay request and to implement immediately—unless stopped by a higher court—his wild and (as prominent supporter of same-sex marriage Jonathan Rauch puts it) “radical” ruling against Prop 8.  Among other things, Walker’s ruling is contrary to the Supreme Court’s 1972 order in Baker v. Nelson, which unanimously dismissed, “for want of a substantial federal question,” the same constitutional claims that the anti-Prop 8 plaintiffs made.  It’s also contrary in multiple respects to other well-established lines of authority, and it rests on leaps of illogic and sweeping factual assertions that are refuted not only by the record but by common sense. 

Denying a stay pending appeal would lead to incredible confusion and chaos and could only be understood as an effort by Walker to alter the status quo in order to try to entrench his lawless ruling.  (The fact that Governor Schwarzenegger and attorney general Jerry Brown, in their continued dereliction of their duty to defend Prop 8, oppose the stay request is insignificant, for California law recognizes that proponents of a proposition represent the public interest when state officials decline to defend a proposition.  It’s on that very basis that Walker proceeded with the anti-Prop 8 lawsuit.)

Unthinkable as denial of a stay ought to be, Walker has already shown himself to be so devoid of sober judgment in this case that who knows what he might do.

If Walker does deny the stay and the Ninth Circuit doesn’t immediately reverse him, another slapdown by the Supreme Court—which this time ought to be unanimous—may be imminent.

Among the many distortions and falsehoods that Judge Vaughn Walker has tried to propagate through his anti-Prop 8 ruling is his claim that the Prop 8 proponents—who intervened as defendants in the case and valiantly carried out the role of defending Prop 8 when the state defendants abandoned their duties to do so—“failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.”  (Slip op. at 11.)  Walker’s claim, which many in the media evidently unfamiliar with the case have parroted, operates to divert attention from the manifest bias that he exhibited throughout the case and that pervades his ruling.  But in fact the Prop 8 proponents offered a thorough case that Walker almost entirely ignored—a case resting on a broad array of judicial authority, recognized scholarship in various academic fields, extensive documentary evidence, and elementary common sense.

One stark illustration of Walker’s massive distortion on this broader matter is his assertion (slip op. at 9-10) that “When asked [during closing arguments] to identify the evidence at trial that supported [the] contention [that ‘responsible procreation is really at the heart of society’s interest in regulating marriage’], proponents’ counsel [Charles Cooper] replied, ‘you don’t have to have evidence of this point.’”  The clear—and utterly misleading—implication that Walker tries to leave through his grossly out-of-context quotation is that the Prop 8 proponents did not offer meaningful (indeed, overwhelming) evidence and other authority on this point.  And plaintiffs’ counsel Ted Olson has compounded the falsehood with irresponsible public statements like this (from his interview on “Fox News Sunday With Chris Wallace”):

In fact, they [Prop 8 proponents] said during the course of the trial they didn’t need to prove anything, they didn’t have any evidence, they didn’t need any evidence.  

1.  Let’s begin by putting Cooper’s statement in its proper context:

At the closing argument in June, Cooper began by stating that “the historical record leaves no doubt … that the central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world.”  (3028:  13-19.)  Cooper cited numerous Supreme Court (and other) cases that reflect this understanding.  (3027-3028.) 

When Cooper stated that “the evidence shows overwhelmingly that … responsible procreation is really at the heart of society’s interest in regulating marriage” (3038:5-8), Walker asked, “What was the witness who offered the testimony?  What was it and so forth?” (3038:14-15.)  Cooper began his response:

The evidence before you shows that sociologist Kingsley Davis, in his words, has described the universal societal interest in marriage and definition as social recognition and approval of a couple engaging in sexual intercourse and marrying and rearing offspring.

Cooper then cited Blackstone’s statements—which were also in evidence submitted at the trial—that the relation of husband and wife and the “natural impulse” of man to “continue and multiply his species” are “confined and regulated” by “society’s interests”; that the “principal end and design” of marriage is the relationship of “parent and child”; and that it is “by virtue of this relation that infants are protected, maintained, and educated.”  (3038-3039*.)  

As Cooper proceeded to work his way through “eminent authority after eminent authority”—all in evidence submitted at the trial—Walker interrupted him to ask the bizarre question, “I don’t mean to be flip, but Blackstone didn’t testify.  Kingsley Davis didn’t testify.  What testimony in this case supports the proposition?”  (3039:16-18.)

Cooper responded to Walker’s question:

Your Honor, these materials are before you.  They are evidence before you.…  But, your Honor, you don’t have to have evidence for this from these authorities.  This is in the cases themselves.  The cases recognize this one after another. [3039:19-3040:1]

Walker:  “I don’t have to have evidence?” [3040:2]

Cooper:  “You don’t have to have evidence of this point if one court after another has recognized—let me turn to the California cases on this.” [3040:3-5]

Note that only the underlined portion of the passage is what Walker quotes in his opinion.

Cooper then proceeded to present California cases stating (in Cooper’s words, which may include direct quotations not reflected in the transcript’s punctuation) that the “first purpose of matrimony by the laws of nature and society is procreation,” that “the institution of marriage … channels biological drives … that might otherwise become socially destructive and … it ensures the care and education of children in a stable environment,” and that (in a ruling just two years ago) “the sexual procreative and childrearing aspects of marriage go to the very essence of the marriage relation.”  [3040]

2.  Walker’s question—“What testimony in this case supports the proposition?”—wasn’t just flip.  It was downright stupid—amazingly so, from a judge who has been on the bench for more than two decades.  Even if one indulges the mistaken assumption that there was any need for a trial in the case (rather than its being disposed of, one way or the other, on summary judgment, with competing expert and documentary submissions), live witness testimony is merely one form of trial evidence.  Exhibits submitted in evidence at trial are another form.  And a judge is of course free to, and expected to, take judicial notice of certain facts. 

3.  In context, it’s clear that Cooper cited extensive evidence in the record, as well as relevant legal authorities, in support of the proposition that “responsible procreation is really at the heart of society’s interest in regulating marriage.”  Indeed, the evidence that Prop 8 proponents submitted (and cited in their proposed findings of fact) in support of this heretofore obvious and noncontroversial proposition was overwhelming. 

4.  When Cooper stated “you don’t have to have evidence for this from these authorities”—Kingsley Davis and Blackstone and the other “eminent authorities” that Cooper was ready to discuss when Walker interrupted—and that the “cases themselves” “recognize this one after another,” it’s crystal-clear in context that he wasn’t contending that he hadn’t provided evidence or that he didn’t need to provide evidence or other authority.  He was merely making the legally sound observation that the many cases recognizing the procreative purpose of marriage were an alternative and additional source of authority for the proposition.

But you wouldn’t know any of this from Walker’s highly distorting clip of Cooper’s statement—or from Olson’s contemptible misrepresentation of it, or the media’s mindless parroting of it.

Walker’s outrageous distortion on this point isn’t an aberration.  As I will show when I have time, it’s representative of his entire modus operandi throughout his ruling.

* It’s not apparent from the transcript which portions of these quotations are directly from Blackstone and which involve Cooper’s linkages.  In quoting the transcript in this post, I’ve also corrected obvious typographical errors that the transcriber made (e.g., “principle” for “principal” and “imminent” for “eminent”).  All emphases are mine.

In an important op-ed in the San Francisco Chronicle, law professor John Eastman argues that Judge Vaughn Walker was obligated either “to disqualify himself or at least to disclose his potentially disqualifying relationship to the parties”—and that, under Supreme Court precedent, his failure to do so “requires that the opinion in the case be vacated and a new trial conducted before a different judge”:

In Liljeberg vs. Health Services Acquisition Corp., the Supreme Court held that the original judgment had to be set aside even when the disqualifying relationship only became known to the parties 10 months after the judgment entered in the case had been upheld on appeal.

As I’ve discussed, whether Walker’s recently reported same-sex relationship requires his recusal may well depend on facts that Walker has not seen fit to disclose.  It’s the usual practice for a judge to advise parties at the outset of a case of information that might give reasonable cause to question the judge’s impartiality.  Walker’s failure to do so would seem yet further evidence of Walker’s manifest inability to be impartial.

Back when the confirmation battles over John Roberts and Samuel Alito were taking place, the Washington Post’s Ruth Marcus wasn’t decrying the failure of Democratic senators to accord deference to President Bush’s nominations.  Nor, so far as I can tell, did she object to the unprecedented partisan filibuster effort that then-Senator Barack Obama and others launched against the Alito nomination.  Rather, she was disputing the proposition that Democrats owed Alito the same deference that Republicans gave Ruth Bader Ginsburg.  (See my own take on Ginsburg vs. Alito.)  And she was complaining about the “inability of the confirmation process, as currently constructed, to elicit much beyond [what she called Roberts’s and Alito’s] formulaic incantations about the rule of law.”

Now, suddenly, Marcus is lamenting that the “Supreme Court confirmation process has been degraded into a partisan political fight.”  A few comments:

1.  Marcus can’t define the level of deference that she thinks is proper, but her approach would apparently include an “outside the mainstream” standard.  Who defines the mainstream?  Apparently, the liberal legal academy.  That’s evidently why Marcus contends that Robert Bork’s “judicial philosophy was demonstrably outside the mainstream,” but that Elena Kagan’s wasn’t.

2.  The battle that Republicans waged over the Kagan nomination was over whether she demonstrated a sound understanding of the judicial role.  That focus—which of course implicates sharply contending conceptions of the judicial role—is an entirely proper one, and it’s a mistake to reduce it to a “partisan political fight.”

3.  Marcus professes a lack of interest in “who started” the deterioration of the confirmation process, even as she misstates the usual Republican position on that question.  (Most conservatives, I think, would trace the deterioration back to the Bork battle in 1987, not to Democrats’ “filibusters of lower-court nominees” in the Bush 43 years.)  While it may seem high-minded (but may simply be politically convenient) not to have interest in this question, it’s difficult to see how anyone could propose a solution to the deterioration problem without understanding the sources of the problem.  (My own analysis of this matter, in the form of my Weekly Standard review of Benjamin Wittes’s Confirmation Wars, is here.)

4.  Marcus refuses to rule out the filibustering of judicial nominees, saying only that the “tactic should be reserved for extraordinary circumstances.”  That’s a meaningless standard.  Marcus doesn’t even reveal whether she thinks the Senate Democrats’ effort to filibuster the Alito nomination was justified.  Indeed, she doesn’t even note the filibuster effort.

By the way, my own consistent opposition to the filibustering of judicial nominees has been premised in part on the (perhaps naïve) hope that the Democrats’ efforts against Alito and lower-court Bush nominees were an ugly aberration that Democrats would agree shouldn’t be repeated.  But if folks on the Left are going to continue to regard the filibuster as a legitimate option, I may well have to reconsider.

5.  In a revisionism increasingly common on the Left, Marcus presents the 22 votes against Roberts as of a kind with the three votes against Ginsburg and the nine votes against Stephen Breyer—all, in her words, “quaint artifacts of a more genteel era.”  But there was nothing “genteel” about the fierce Democratic opposition to Roberts.  Further, as Wittes writes in his Confirmation Wars (pp. 5-6):

[M]any Democrats swung in Roberts’s favor only at the end, in the wake of the surprise decision by the Judiciary Committee’s ranking minority member, Patrick Leahy, to support him.  Roberts could easily have received many fewer Democratic votes.

Leahy’s last-minute support for Roberts, which followed his vehement attacks on Roberts, was entirely tactical:  he thought that it would improve his position to wage battle against the next nominee.  In short, the Roberts confirmation process was not remotely like Ginsburg’s or Breyer’s.

Consistent with his previous criticism of the anti-Prop 8 lawsuit, Jonathan Rauch—a leading supporter of same-sex marriage—condemns Judge Vaughn Walker’s ruling last week as “a radical one” that “sets the cause of marriage equality crosswise with moderation, gradualism, and popular sovereignty.”  Here’s one excerpt (emphasis added):

Now, I agree with Walker that gay marriage is unlikely to cause any significant social harm and will do much good. But the judge insists that the testimony of a handful of expert witnesses in his courtroom rules out the possibility of harm so definitively as to make any attempt at caution or gradualism irrational. The evidence, he holds, is “beyond debate.” In an unpredictable world, that kind of sweeping certainty would leave any Burkean gulping.

(Rauch does offer considerable praise for aspects of Walker’s ruling.  For example, he calls it “a formidable piece of work, bristling with evidence and carefully reasoned.”  I think that this praise is wholly undeserved.  As I hope to show in more detail, Walker simply ignored mounds of unwelcome evidence and overstated the evidence that he cited, and his reasoning is incoherent and contrary to multiple precedents that he doesn’t even acknowledge, much less try to distinguish away.)

2006—In a separate opinion in Henyard v. McDonough, Eleventh Circuit judge Barkett, reaching out to address an issue that she concedes (with considerable understatement) “may not be directly before us,” opines that the Eighth Amendment should be construed to bar the death penalty for murderers “with a mental age of less than eighteen years.”  What exactly Barkett means by “mental age” is confused.  At one point, she quotes, with seeming approval, a definition of “mental age” as the “chronological age equivalent of the person’s highest level of mental capacity.”  But she inconsistently equates it with “emotional level” and says that “even high IQ in an adult defendant” is compatible with “a mental age of a child.”  Her test appears to be whether a murderer shares a “child’s inability to understand why the rules exist, to appreciate the consequences of breaking them for herself and for society, and to consistently make judgments based on the foregoing.” 

Barkett’s test virtually ensures that most heinous murderers will be deemed to have a mental age below 18.  Indeed, she states that there is “no dispute” that Richard Henyard—who carjacked a mother and her two daughters (ages 7 and 3), raped and shot the mother, and shot and killed the daughters—has a mental age below 18.

Barkett’s test would seem to establish that she has the mental age of a child.  Does This Day perennial Barkett “understand why the rules exist”?  Does she “appreciate the consequences of breaking them”—through her lawless judicial activism?  Does she “consistently make judgments based” on those understandings?  From the evidence that pervades This Day entries, the answers are no, no, and no.