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View Diary: Scotus Blog: Supreme Court won’t uphold or strike down Prop 8 (199 comments)

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  •  There is a way to keep the 9th (0+ / 0-)

    Circuit's decision in place, and that's by denying the cert grant retroactively, ducking the question of Article III jurisdiction entirely.

    Difficult, difficult, lemon difficult.

    by Loge on Tue Mar 26, 2013 at 10:31:17 AM PDT

    [ Parent ]

    •  This is known as a "DIG" (1+ / 0-)
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      "Dismissed as Improvidently Granted."

      One problem: I don't fully recall the procedure of the case, but if there was no legitimate standing at the Supreme Court level how could there have been legitimate standing at the Circuit Court level?  It would seem that that ruling would have to be vacated (under Musingwear, if I recall correctly) -- at least, it would if anyone had the standing to seek its being vacated!

      My concern is that even if no one can do that currently, a future Governor or AG might be able to do so.  That would be weird.  Hopefully, Windsor remains alive and imposes intermediate scrutiny on sexual orientation, which in effect decides Hollingsworth as well.

      Plaintiffs' Employment Law Attorney (harassment, discrimination, retaliation, whistleblowing, wage & hour, &c.) in North Orange County, CA.

      "I love this goddamn country, and we're going to take it back."
      -- Saul Alinsky

      by Seneca Doane on Tue Mar 26, 2013 at 11:17:41 AM PDT

      [ Parent ]

      •  yeah, i was keeping it general (1+ / 0-)
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        Seneca Doane

        i think the other case the court heard today, on "reverse payment patent settlements" has a good shot at being Digged because the FTC arguably created the circuit split and a good chance of a 4-4 tie otherwise.

        I agree the standing issues at SCOTUS and Circuit levels are the same, but a dismissed as improvidently granted just says, "oops, we didn't mean to hear this one." The 9th Circuit would probably have to dismiss sua sponte, or the SCOTUS could remand to the appeals court with instructions to vacate and remand.   I think any arguments that the district court decision would have to be vacated are pretty weak since state agents were nominal parties, and the intervenors could be deemed amici nunc pro tunc, and that would still leave an injunction in place against Prop 8.  Windsor would, indeed, take care of the issue (and i'm surprised the Court scheduled oral argument on Hollingsworth first, since the SG's briefs basically tell them that Windsor should go first).  Otherwise, yes, a future AG could bring a new action to reinstitute prop 8 (See FRCP 60(d)(1)) or, possibly, move to vacate the currently-stayed injunction by Judge Walker under Rule 60(b)(6).

        Or Prop 8 could be overturned by ballot initiative ;).

        Difficult, difficult, lemon difficult.

        by Loge on Tue Mar 26, 2013 at 11:38:16 AM PDT

        [ Parent ]

        •  Maybe I'm misreading you but (2+ / 0-)
          Recommended by:
          Loge, CoyoteMarti

          If it's dismissed as improvidently granted, then the Ninth Circuit's decision will stand; it will be just like the other 99% of circuit court decisions for which the Supreme Court decides not to hear via their discretionary certiorari jurisdiction.

          If there's a ruling of no standing, then the Ninth Circuit's decision is gone.  There will be, in my opinion, no question that the district court's judgment will stand: even though the state did not defend it, they were the defendants, and the judge did have an obligation to decide the issue on its merits (i.e., it correctly did not just let the Government's acquiescence settle the merits issue).

          The big problem with a standing ruling will be the ancillary litigation over whether the district court's decision is applicable ONLY to the plaintiffs who brought it, or whether it binds the state as a whole.  The district court judge said the former, but that issue itself is not without controversy and NOM already made clear that narrowing the decision to apply only to the plaintiffs will be its strategy going forward if it loses on standing.

          •  I think that's right, (1+ / 0-)
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            but I think you got tripped up about the district court decision.  The court enjoined all of the defendants from enforcing prop 8, and I think that means the decision is applicable statewide.  NOM can do what it wants, but the only way there would be litigation is over some county clerk refusing to issue licenses.  There, the counterarugments would be whatever's decided in Windsor about equal protection rights and the Cali-specific question about how binding are interpretations by the Secretary of State or Attorney General, who can't rely on Prop 8 in issuing guidance, meaning the state-level SSM case goes back in force as the leading pronouncement of California law on marriage rights.

            Difficult, difficult, lemon difficult.

            by Loge on Tue Mar 26, 2013 at 12:15:34 PM PDT

            [ Parent ]

            •  I know the DCT judge said that (0+ / 0-)

              But when this is returned to the Ninth Circuit, they will be able to hear the question of the scope of the injunction (which was raised at the Ninth Circuit before, IIRC, but which became moot after the Ninth Circuit's ruling made that ruling binding precedent in the entire Ninth Circuit).

              And even assuming the Ninth Circuit punts entirely on remand (which it probably should, since presumably the state will agree that the injunction is binding and no one with standing can oppose that), NOM will have zero problem finding some Inland Valley conservative county clerk to deny someone a marriage license citing Proposition 8 as the reason.

              If THAT happens, the new district court judge will be able to decide (1) whether the Perry injunction is binding on the non-party clerk, and (2) whether Proposition 8 is unconstitutional--a decision which it could address de novo.  There will be no stare decisis effect to the district court decision, and the Ninth Circuit decision will have been vacated.

              If they draw a conservative judge, there's a good chance that he or she would rule (1) no and (2) no.

              Then, the Ninth Circuit will get the case on appeal from the people denied the license, where again the issue will be decided anew, without deference to the since-vacated CA9 decision.

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