The times they are a changin'
Ted Olsen (yes, that Ted Olsen, the guy who ran point on the legal team which got Bush appointed to the White House in 2000), is upset with the Calif. Supreme Court.
He not only upset with them, on legal grounds, but he's staging a legal challenge to Prop 8. A federal challenge. Of all things, given this court, an Equal Protection Challenge.
( Read more... )
He not only upset with them, on legal grounds, but he's staging a legal challenge to Prop 8. A federal challenge. Of all things, given this court, an Equal Protection Challenge.
( Read more... )
Comments 21
This is what I think too. Right now, the Supreme Court consists of, and I can't say it better than Brad Delong, "Seven Republicans, only three of them attached to reality, and two Democrats". Even allowing for Sotomayer replacing Souter, that still doesn't look good. Ginsburg has cancer, Stevens is approximately three hundred years old, and nobody on the insane wing of the court seems to be going anywhere. I think it's going to be another Plessy v Ferguson if it comes up, and I think Olson knows it.
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Right now it's not even appealed into the Federal system. Until it get to the Circuit what the Supremes think isn't an issue. It really depends on how any actual appeal is framed.
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Complaint: http://www.equalrightsfoundation.org/images/2009-05-22_Filed_Complaint.pdf
Motion for Preliminary Injunction: http://www.equalrightsfoundation.org/images/Preliminary_Injunction_5-27.pdf
I think that there's a passage in Lawrence that sort of set this whole thing up. The statutes do seek to control a personal relationship that, whether or not entitiled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals ( ... )
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Just, damn.
Of course, Olson bailed on Bush in 2004, so it may be that he has decided that his conservative principles are not the same as some other people's conservative principles, so to speak. Then again, phonemonkey may be right.
Given how long it can take for a case to get to the Supremes, though, a couple more vacancies could have appeared and been filled by then.
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But actually do believe him.
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I want to trust Olson and Boies, and if there's two attorneys who can get the attention of the Supremes by making a novel legal argument, or even just framing it in a way that makes it impossible for the Nine to look the other way, it's these two...
Oddly enough, it was my opinion from the get go that the procedural argument, vis "is this a correct amendment of the State Constitution?" was weak tea and not the right way to go. I have always thought this was going to come down to a question of due process and equal protection, and whether a majority has the right to single out a specific suspect group to de-certify those rights.
mojo sends
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Without a federal question the pro-8 side couldn't appeal it into the federal system, where this bench (which still had Souter, and is, apparently, strongly controlled in chambers by Alito/Scalia) was the one to end up with the case.
In a couple of years, should the court's makeup change, there might then have been a way to finesse a federal claim; in the hopes a more reasonable court was going to be petitioned to hear it.
This case changes the playing field. I don't know quite what to make of it, because Olsen, as well as anyone, has a good idea of how the justices reason. It's an interesting situation.
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About as stupid as, hypothetically, deciding to take a Roe v. Wade
to the Supreme Court as a pro-life advocate when your
brain was telling you it had an 80% chance of making abortion legal
everywhere in the US. (Not saying this was the case back then,
just drawing a hypothetical analogy).
Unless they know something we don't about the retirement plans of some younger
Supreme Court Justices, the end result of this case is very likely to
be a severe blow to equal rights. The right of the state to prohibit same-sex marriage despite the Equal Protection Clause will become enshrined by Supreme Court decision.
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1) A lot of folks in the gun lobby felt the same way about DC v. Heller.
2) Olson's a pretty darn good lawyer and probably has a better feeling for the odds than you do.
3) There's no guarantee that it will get to the Supreme Court
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1: The Gun Lobby believed Scalia, Alito, et al, when they said they actually believed in stare decisis.
2: I don't believe this court is all that faithful to stare decisis (and the verdict in Bush v Gore is, if nothing else, why). I believe the there are at least three members who look at a case and ask themselves how they can bend the law to suit their desires.
4: The track record of this court is that equal protection is non-starter for plaintiffs.
5: The only way this gets to the supreme court is that the circuit ruled in favor of same sex marriage/against DOMA.
If those happen I can't see this court making a decision in favor of same sex marriage.
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