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

by Ed Whelan

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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