Bench Memos

Ninth Circuit Oral Argument in Prop 8 Appeal: Some Observations

I missed most of the first half-hour of the oral argument (on standing), so, subject to that limitation, I’ll offer a few quick observations:

1. None of the judges showed any interest in the trial testimony or in Judge Walker’s purported factual findings. Judge Hawkins (one of the two Democratic appointees on the panel) seemed to take the sound view that any factual findings would involve “legislative facts” and be subject to de novo review and that review under the rational-basis standard isn’t defined by the trial record. (I say “seemed” only because it’s always possible that a judge in his questioning is playing devil’s advocate.) No judge signaled any other view. So much for Walker’s extravagant frolic.

2. Judge Reinhardt repeatedly showed interest in a purportedly narrow ruling against Prop 8 that would rest heavily on the position that Prop 8 took away a pre-existing right to same-sex marriage. The right that he was referring to was the result of the state supreme court’s wild ruling in May 2008 that there was a state constitutional right to same-sex marriage—a ruling that the people of California overturned at the first opportunity.

The myth of judicial supremacy would be taken to incredible new heights if the people of a state are unable to undo, via constitutional amendment, a state supreme court’s misconstruction of the state constitution. Chuck Cooper, counsel for Prop 8’s proponents, made this point powerfully, but there were no signs that Reinhardt was persuaded.

3. The unwarranted decision by then-Solicitor General Elena Kagan not to seek Supreme Court review of the Ninth Circuit’s rogue decision in Witt v. Department of Air Force continues to bear its poisonous fruit (exactly as Kagan and the Obama administration intended, I suspect). Judge Reinhardt invoked Witt as a basis to apply heightened scrutiny to Prop 8.

4. Having missed much of the argument on standing, I won’t venture a guess on how the panel will rule on that issue (though I will note that I didn’t detect an inclination to dismiss the appeal on that ground). If the panel reaches the merits (and if Reinhardt still hasn’t realized by then that he’s required to disqualify himself), I’d bet that it will rule 2-1 (Reinhardt and Hawkins versus Smith) against Prop 8—probably on the ground in point 2 and probably with alternative holdings, one assuming heightened scrutiny, one on rational-basis review.

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