The Prop 8 Appeals Court Panel: Bad In The Long Run?

Jim Burroway

November 29th, 2010

As we reported earlier today, the Ninth Circuit Court of Appeals has announced the panel of judges that will will hear an appeal to Judge Walker’s decision in Perry v. Schwarzenegger that Proposition 8 is in violation of the US Constitution. That panel will consist of Judges Stephen Roy Reinhardt, Michael Daly Hawkins, and Norman Randy Smith. Many believe that the panel will be inclined to uphold Judge Walker’s decision. Focus On the Family went so far as to call the panel “stacked against marriage protection.”

The Ninth Circuit however is just a way-station on the way to the ultimate stop, the Supreme Court. Orin Kerr, posting on the Volokh Conspiracy, worries about Judge Reinhardt’s presence on the panel:

Reinhardt writes like there is no Supreme Court, and as a result his opinions have a remarkable ability to annoy the Justices. In return, the Supreme Court loves to reverse Reinhardt. They love to reverse opinions he signs, and they love to reverse opinions he participates in.


November 29th, 2010

It could be a complete ultra-conservative panel, and it wouldn’t do a thing to shift the positions of the justices.

Scalia, Alito, and Thomas are obvious cons. Roberts is likely a vote for Prop 8 as well given his record.

That leaves 5 justices. Hopefully Kagan won’t recuse herself. Unlike the previous 4, these justices are real wild cards. Ginsburg is a pro-vote at least. I’m inclined to think Sotomayor is as well.

Ultimately, the sketchy votes are Kennedy and Kagan.

People who buy Olson/Boies’ florid rhetoric of being able to court both sides of the aisle are naive and don’t realize that such statement is just playing nice and warming up the court that will rule on your case.

David C.

November 29th, 2010

Dunno, hard to say. If the panel upholds the ruling that Prop 8 is unconstitutional, Prop 8 is toast in California and that’s the end of the road for Prop 8 proponents. The state of California has refused to defend the law and in all probability appellants have no standing. End of Prop 8, end of the road for this decision and SCOTUS doesn’t get a crack at it.


November 29th, 2010

@David C.: Well the standing issue is going to be decided first. If they have no standing, I assume the question of unconstitutionality will be moot in regard to the 9th Circuit. Of course I’m sure they can appeal the standing issue to the SCOTUS and it’ll ultimately be up to Kennedy.


November 30th, 2010

I don’t think Kagan would have any reason to recuse herself from this, as its not a Federal Law.

Regan DuCasse

November 30th, 2010

Since the Prop. 8 defenders had no evidence, their witnesses were MIA or unable to make their case, how is it possible that Prop. 8 can be upheld, even in a higher court?

There’s NOTHING to defend it! So if this is coming down to HOW Prop. 8 got put on the ballot (which was legal in itself), that still doesn’t make Prop. 8 legal.

Now is the question still going to be the Constitutionality of Prop. 8?

I’d say it’s unConstitutional on several points.

1. That a tyranny of a majority is in effect. And shouldn’t be.

2. It violates the 14th amendment

3. It violates the 10th amendment

4. How is it in the state’s interests to violate any amendment against a distinct minority like gay people?

5. The Constitution, for the first time enshrines discrimination, against it’s own creed of protection for free and responsible citizens.

There is a lot going on that compromises the integrity of the Constitution, if not marriage.
In the zeal to deny gay people it’s protections, the Constitution isn’t protected either.

And there is no good reason here, to do either.


November 30th, 2010

I think the issue of standing, as in the lack thereof, will ultimately keep Perry from reaching the Sup. Ct.


November 30th, 2010

Exactly. The Supreme Court is known for being very strict with standing issues. Even if the 9th Circut rules that the proponents have standing, an appeal to the Supreme Court on the issue likely would reverse it.

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