Some early reports from today’s oral argument indicate that some justices may be inclined to rule that Prop 8 proponents lack standing to defend Prop 8 and that the Court therefore lacks jurisdiction to hear the case. A few quick thoughts:
1. I explain in this extensive post from two days ago why I believe that the argument that Prop 8 proponents lack standing is wrong.
2. I’d be cautious about inferring from the oral argument that there is a majority to rule against standing. If there is not a majority, the Court would of course proceed to the merits.
3. A ruling that Prop 8 proponents lack standing would mean that the Ninth Circuit also didn’t have jurisdiction. Further, as UC Davis law professor Vikram Amar (a former Blackmun clerk and not a conservative) and I both discussed two years ago, a ruling that Prop 8 proponents lack standing may also compel the conclusion that the district-court proceedings lacked the adverseness needed under Article III—and that Judge Walker’s judgment should therefore be vacated in its entirety. Now that would be a fitting conclusion. Indeed, for the reasons I spell out in my amicus brief, that result would be the proper one whether or not it is compelled.