My Supreme Court Amicus Brief in Prop 8 Case

by Ed Whelan

The amicus brief that I am filing today in the Supreme Court in the Prop 8 case (Hollingsworth v. Perry) is now available online here (including a link to the PDF version). If any judges had, in support of conservative causes, done anything like what then-Chief Judge Vaughn Walker and Ninth Circuit judge Stephen Reinhardt did in this case, the scandal would be high-profile national news.

Here is my summary of argument:

For the reasons explained by petitioners, this case cannot properly be decided on grounds unique to California’s Proposition 8. It instead presents the general question whether the Constitution forbids a state from embracing the perennial definition of marriage as the union of a man and a woman.

This brief has two purposes. First, we document the egregious course of misconduct by the district judge below in order to alert this Court to the fact that it should be especially wary of accepting at face value any assertion made by that judge. In Part I, we show how the district judge defied this Court’s January 2010 order blocking broadcasting of the trial–and nearly succeeded in having his video recording of the entire trial made public. In Part II and Part III, we expose in detail two of the district judge’s characteristic distortions. In Part IV, we survey the extraordinary series of other errors by the district judge that benefited plaintiffs.

Second, we explain that, if the Court is not inclined to reverse the judgment below outright (the disposition we believe to be correct), it should exercise its supervisory power to vacate the judgments below in their entirety. In Part V, we show that the author of the Ninth Circuit opinion should have disqualified himself from taking part in the appellate proceedings because his wife consulted in advance with plaintiffs’ counsel about the very decision to file the lawsuit, because she authorized the ACLU affiliate that she led to file amicus briefs supporting plaintiffs in the trial proceedings, and because she publicly celebrated the very ruling that the Ninth Circuit was to review. In Part VI, we explain that the district judge’s failure to disclose that he was in the midst of a long-term same-sex relationship improperly deprived the parties of the information necessary to assess whether he was sitting in judgment of his own case and should therefore be disqualified. Together with the district judge’s egregious course of misconduct outlined in Parts I through IV, these considerations would warrant the Court’s vacatur of the judgments below.

And here is my conclusion:

The metaphor of judges as umpires succinctly captures the judicial duty of impartiality. It is thus quite telling that, in an article obviously written to justify his remarkable course of misconduct in this case, former judge Walker contests this use of the metaphor. Rather, he contends, what judges “must do” is “take account of the pitcher and the batter in the legal arena, watch the windup, the throw, the curve, and the delivery and then, where they believe appropriate, move the strike zone.” Vaughn R. Walker, Moving the Strike Zone: How Judges Sometimes Make Law, 2012 U. Ill. L. Rev. 1207, 1223 (2012) (emphasis added). Former judge Walker’s mistaken extension of the umpire metaphor speaks volumes about his deliberate mishandling of this case, even as it dramatically understates the one-sided measures that he and Judge Reinhardt took to deliver a victory for the party they favored.

The judgment below should be reversed or, in the alternative, both the appellate judgment and the judgment of the district court should be vacated.

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