Skip to main content

In a 17 page opinion just handed down, a 5-4 Supreme Court has granted a stay of the order below allowing same-day YouTube broadcast of the Prop 8 trial currently proceeding before Judge Walker in the Northern District of California.  

It's a per curiam opinion, meaning no single justice in the majority is taking ownership of it, but it is the conservative majority authoring the opinion with the four remaining justices dissenting.  From that opinion:

We are asked to stay the broadcast of a federal trial. We resolve that question without expressing any view on whether such trials should be broadcast. We instead determine that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves.

The question whether courtroom proceedings should be broadcast has prompted considerable national debate. Reasonable minds differ on the proper resolution of that debate and on the restrictions, circumstances, and procedures under which such broadcasts should occur. We do not here express any views on the propriety of broadcasting court proceedings generally.

Instead, our review is confined to a narrow legal issue: whether the District Court’s amendment of its local rules to broadcast this trial complied with federal law. We conclude that it likely did not and that applicants have demonstrated that irreparable harm would likely result from the District Court’s actions. We therefore stay the court’s January 7, 2010, order to the extent that it permits the live streaming of court proceedings to other federal courthouses. We do not address other aspects of that order, such as those related to the broadcast of court proceedings on the Internet, as this may be premature....

In amending [the traditional no-broadcast] rule, it appears that the District Court failed to "giv[e] appropriate public notice and an opportunity for comment," as required by federal law.  The first time the District Court asked for public comments was on the afternoon of New Year’s Eve. The court stated that it would leave the comment period open until January 8. At most, the District Court therefore allowed a comment period spanning five business days. There is substantial merit to the argument that this was not "appropriate" notice and an opportunity for comment. Administrative agencies, for instance, "usually" provide a comment period of "thirty days or more."

Applicants also have shown that irreparable harm will likely result from the denial of the stay. Without a stay, the District Court will broadcast the trial. It would be difficult—if not impossible—to reverse the harm from those broadcasts. The trial will involve various witnesses, including members of same-sex couples; academics, who apparently will discuss gender issues and gender equality, as well as family structures; and those who participated in the campaign leading to the adoption of Proposition 8. This Court has recognized that witness testimony may be chilled if broadcast.... Some of applicants’ witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment. See, e.g., Exh. K to Defendant-Intervenors’ Motion (71 news articles detailing incidents of harassment related to people who supported Proposition 8). These concerns are not diminished by the fact that some of applicants’ witnesses are compensated expert witnesses. There are qualitative differences between making public appearances regarding an issue and having one’s testimony broadcast throughout the country. Applicants may not be able to obtain adequate relief through an appeal. The trial will have already been broadcast. It is difficult to demonstrate or analyze whether a witness would have testified differently if his or her testimony had not been broadcast. And witnesses subject to harassment as a result of broadcast of their testimony might be less likely to cooperate in any future proceedings.

As such, the Court granted the application for a stay of the District Court’s order allowing broadcast.

Justice Breyer, dissenting, on behalf of himself and Justices Stevens, Ginsburg and Sotomayor:

Certainly the parties themselves had more than adequate notice and opportunity to comment before the Rule was changed. On September 25, 2009, the trial judge, Chief Judge Vaughn Walker, discussed the possibility of broadcasting trial proceedings both within the courthouse and beyond, and asked for the parties’ views. No party objected to the presence of cameras in the courtroom for transmissions within the courthouse, Exh. 9, p. 70, App. to Pet. for Mandamus in No. 10–70063 (CA9) (hereinafter App. to Pet.). ("No objection. None at all"), and both sides made written submissions to the court regarding their views on other transmissions....

There was also sufficient "opportunity for comment." The parties, the intervenors, other judges, the public—all had an opportunity to comment. The parties were specifically invited by Chief Judge Walker to comment on thepossibility of broadcast as early as September. And the entire public was invited by the District Court to submit comments after the rule change was announced, right up to the eve of trial. As I said, the court received 138,574 comments during that time. How much more "opportunity for comment" does the Court believe necessary....  

It is particularly inadvisable for this Court to consider this kind of question because it involves local rules and local judicial administration. Here, for example, the Court decides just how a district court should modify its own local rules; in a word, this Court micromanages district court administrative procedures in the most detailed way.

Certainly there is no evidence that such harm could arise in this nonjury civil case from the simple fact of transmission itself. By my count, 42 States and two Federal District Courts currently give judges the discretion to broadcast civil nonjury trials. []  Neither the applicants nor anyone else "has been able to present empirical data sufficient to establish that the mere presence of the broadcast media inherently has an adverse effect on [the judicial] process."  ...

The applicants also claim that the transmission will irreparably harm the witnesses themselves, presumably by increasing the public’s awareness of who those witnesses are. And they claim that some members of the public might harass those witnesses. But the witnesses, although capable of doing so, have not asked this Court to set aside the District Court’s order.[]  And that is not surprising. All of the witnesses supporting the applicants are already publicly identified with their cause. They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the State advocating a "yes" vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse.

... By way of comparison literally hundreds of national and international newspapers are already covering this trial and reporting in detail the names and testimony of all of the witnesses. See, e.g., Leff, Woman Recalls Emotional Ordeal of Gay Marriage Ban, Associated Press, Jan. 11, 2010. I see no reason why the incremental increase in exposure caused by transmitting these proceedings to five additional courtrooms would create any further risk of harm, as the Court apparently believes.

[T]he applicants’ equities consist of potential harm to witnesses—harm that is either nonexistent or that can be cured through protective measures by the District Court as the circumstances warrant. The competing equities consist of not only respondents’ interest in obtaining the courthouse-to-courthouse transmission that they desire, but also the public’s interest in observing trial proceedings to learn about this case and about how courts work. See ... also Exh. 2, at 42, App. to Pet. (statement of Chief Judge Walker) ("[I]f the public could see how the judicial process works, they would take a somewhat different view of it." "I think the only time that you’re going to draw sufficient interest in the legal process is when you have an issue such as the issues here, that people think about, talk about, debate about and consider"). With these considerations in the balance, the scales tip heavily against, not in favor, of issuing the stay.

The majority’s action today is unusual. It grants a stay in order to consider a mandamus petition, with a view to intervening in a matter of local court administration that it would not (and should not) consider. It cites no precedent for doing so. It identifies no real harm, let alone "irreparable harm," to justify its issuance of this stay. And the public interest weighs in favor of providing access to the courts. To justify this extraordinary intervention, the majority insists that courts must "enforce the requirement of procedural regularity on others, and must follow those requirements themselves." And so I believe this Court should adhere to its institutional competence, its historical practice, and its governing precedent—all of which counsel strongly against the issuance of this stay.

I respectfully dissent.

Originally posted to Daily Kos on Wed Jan 13, 2010 at 02:40 PM PST.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  What bullshit. (14+ / 0-)

    If you're fearful people might regard your position as hateful, maybe you're position should change. What despicable asshats.

  •  Within Ten Years (12+ / 0-)

    none of this will matter. We'll be having gay marriages coast to coast, so the bigots can only hope to spin their wheels and waste our time.

    My partner and I will probably have to fly to East to get married, but CA will recognize it at that point. Frustrating and annoying, but the country is changing and we'll be equals in no time.

    "Why you gotta act like you know when you don't know?" - Ben Folds

    by RNinNC on Wed Jan 13, 2010 at 02:43:29 PM PST

  •  I can guess the division (4+ / 0-)
    Recommended by:
    raatz, Pd, mungley, lgmcp

    Same as Bush v. Gore with Roberts in Rehnquist role and Alito in C'Connor's.

    "Valerie, why am I getting all these emails calling me a classless boor?"

    by TLS66 on Wed Jan 13, 2010 at 02:44:11 PM PST

  •  So the Prop 8 Bigots (12+ / 0-)

    get to stay in their little closet.

    Fuckers.

    Before you win, you have to fight. Come fight along with us at TexasKaos.

    by boadicea on Wed Jan 13, 2010 at 02:44:37 PM PST

  •  What I wouldn't give for Nino Scalia.... (9+ / 0-)

    ....to decide that he had to spend more time with his family in his declining years!

    Stop Obama's Wars Now! Bring the Troops Home!

    by GreenSooner on Wed Jan 13, 2010 at 02:44:52 PM PST

  •  Probably same breakdown for the case when it (4+ / 0-)
    Recommended by:
    mungley, lgmcp, emsprater, batgirl71

    reaches S.Ct.

    •  Well, I'm hoping Kennedy is (3+ / 0-)
      Recommended by:
      lirtydies, lgmcp, Pender

      merely doing this so as to protect USSC policy as to not having their own proceedings televised and will revert to his position in Lawrence when the actual case reaches the court.

      "Valerie, why am I getting all these emails calling me a classless boor?"

      by TLS66 on Wed Jan 13, 2010 at 02:47:05 PM PST

      [ Parent ]

    •  At a minimum ... (0+ / 0-)

      ... I think Kennedy has to go along with the anti-Prop 8 side on the animus part of the argument, which I explained back here.

      Show Dems in R-Leaning Districts Who Voted For Health Care, Against Stupak: We've Got Your Back

      by Adam B on Wed Jan 13, 2010 at 02:51:46 PM PST

      [ Parent ]

      •  If I thought legal reasoning rather than (1+ / 0-)
        Recommended by:
        Nax

        emotions and politics were important, then I probably would be inclined to agree. Since, I think emotions and politics trump all legal arguments, then I am less inclined to agree. The problem has never been the arguments. Those are a slam dunk to anyone who is not biased against them. I am not yet convinced he is willing to accept the logical extension of his own arguments.

        •  Justice Kennedy's majority opinion in Lawrence (1+ / 0-)
          Recommended by:
          lgmcp

          Link:

           Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

             The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

             Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

          Show Dems in R-Leaning Districts Who Voted For Health Care, Against Stupak: We've Got Your Back

          by Adam B on Wed Jan 13, 2010 at 02:59:28 PM PST

          [ Parent ]

          •  That was excellent (0+ / 0-)

            but on other related cases I think he has been less favorable?

            My understanding is that he is a bit of an unpredictable swing vote on GLBT rights.

            "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

            by lgmcp on Wed Jan 13, 2010 at 03:04:09 PM PST

            [ Parent ]

            •  I can't think of an anti-gay vote he has cast. NT (3+ / 0-)
              Recommended by:
              craigkg, lgmcp, Pender

              Show Dems in R-Leaning Districts Who Voted For Health Care, Against Stupak: We've Got Your Back

              by Adam B on Wed Jan 13, 2010 at 03:09:09 PM PST

              [ Parent ]

              •  On the Supreme Court at least... (2+ / 0-)
                Recommended by:
                Adam B, lgmcp

                ...but he has on the 9th Circuit, but in writing on that case, he treated the issue with far more respect than was common at the time. I'll look of the reference for you if you like.

                "So it was OK to waterboard a guy over 80 times but God forbid the guy who could understand what that prick was saying has a boyfriend."--Jon Stewart

                by craigkg on Wed Jan 13, 2010 at 03:10:54 PM PST

                [ Parent ]

                •  sure. I'd be interested. NT (0+ / 0-)

                  Show Dems in R-Leaning Districts Who Voted For Health Care, Against Stupak: We've Got Your Back

                  by Adam B on Wed Jan 13, 2010 at 03:12:52 PM PST

                  [ Parent ]

                  •  Looks like its 5 times actually (3+ / 0-)
                    Recommended by:
                    Adam B, vancookie, Pender

                    This is an excerpt from Joyce Murdoch and Deb Price's Courting Justice: Gay Men And Lesbians V. The Supreme Court:

                    ...The eloquent Kennedy,51, didn't sound like a Bork or, for that matter, a Rehnquist or Scalia. He was difficult to pigeonhole. Civil Rights advocates worried that he was "Bork without the bite." His view on gay rights were murky enough to worry both their advocates and opponents.

                    Kennedy had ruled in five gay-rights cases. All five times he had ruled against the gay side. Yet because he clearly took gay issues seriously and once raised the possibility that some anti-gay discrimination might be unconstitutional, North Carolina Republican Senate Jesse Helms's knee-jerk reaction to Kennedy's nomination was "No way, Jose!"

                    Kennedy had written the Beller v. Middendorf decision upholding Navy regulations banning homosexuals. In Sullivan v. INS, he ruled that deportation was not a "special hardship" for Australian Anthony Sullivan, even if it separated him from his American partner. Kennedy had joined decisions finding that John Singer had no right to regain his federal job because he had "flaunted: his homosexuality, that the gay Olympics case did not merit the attention of the entire Ninth Circuit and that gay people who'd lost federal jobs were not entitled to class-action relief despite a lower court decision finding the government guilty of unconstitutional discrimination. In a sixth case, Kennedy rule that it was not sex discrimination to treat the forcible sodomizing of a man as a more serious crime than the rape of a woman. "It is rational to determine that the harm, both physical and mental, suffered by victims of these two crimes are of a different quality....[L]aws may properly take account of such differences...," he said.

                    [...]

                    Yet Kennedy's 1980 Beller decision, despite its outcome, set him very much apart from jurists who gave no indication of being acquainted with learned arguments in favor of protecting the basic civil rights of gay Americans. In a remarkable bow to liberal legal scholars, Kennedy wrote, "We recognize, as we must, that there is substantial comment which argues that the choice to engage in homosexual action is a personal decision entitled, at least in some instances, to recognition as a fundamental right and to full protection as an aspect of the individual's right of privacy." He proceeded to cite the hard work of liberal constitutional scholar Laurence Tribe and a host of law review articles favoring gay civil rights. Kennedy's Beller decision marked the first time that a federal appeals court has suggested that government-sponsored anti-gay discrimination (outside the military) might have to pass a test of "heightened scrutiny" to be constitutional.

                    The book also notes his respectful tone in discussing sodomy laws and GLBT rights, without passing judgment on their constitutionality, at a 1986 speech to Canadian judges at a Stanford legal forum. He contrasted the Bowers decision with the European Court of Human Rights decision.

                    "So it was OK to waterboard a guy over 80 times but God forbid the guy who could understand what that prick was saying has a boyfriend."--Jon Stewart

                    by craigkg on Wed Jan 13, 2010 at 03:39:56 PM PST

                    [ Parent ]

          •  I don't understand why you think that (1+ / 0-)
            Recommended by:
            Pender

            is a refutation of my concern?

        •  Thank you. (1+ / 0-)
          Recommended by:
          emsprater

          In the end it will be 5 Republicans and at least 6 Catholics hearing this case.  And you're right, emotions and religious bias trump reason and justice in the law. I'm sorry about this, but it's too true.

  •  So this is judicial activism no? (8+ / 0-)

    Are conservative activists going to protest this decision?

    I'm gay, I'm pissed, I'm not giving up, I'm not giving in, I'm not shutting up, and I'm not going away. Deal with it.

    by psychodrew on Wed Jan 13, 2010 at 02:45:35 PM PST

  •  Three notes (9+ / 0-)
    1.  I tried to do this as quickly as possible -- if there are typos in my editing of the opinion, let me know.
    1.  All credit to SCOTUSblog, as always, for being first with the news.  Bookmark them, gang.
    1.  If I had to guess, this reads more like Justice Alito or the Chief Justice than the remaining three in the majority.  But if you asked me to explain why, it'll take paragraphs.

    Show Dems in R-Leaning Districts Who Voted For Health Care, Against Stupak: We've Got Your Back

    by Adam B on Wed Jan 13, 2010 at 02:46:48 PM PST

    •  Welcome to the Roberts court (2+ / 0-)
      Recommended by:
      lgmcp, emsprater

      My impression is that he likes to decide cases on the smallest technicality possible and avoid the bigger issues. Please correct me if I'm wrong Adam B.

      •  asdf (2+ / 0-)
        Recommended by:
        Adam B, emsprater

        Everyone does that when it benefits them and judges love to duck bigger issues if they can. Lawyers get called the loophole seeking assholes, but we wouldn't bother if we didn't think it might work. It works so often I really often dream of retiring to a teaching job.

        I support Bernie Sanders.

        by Attorney at Arms on Wed Jan 13, 2010 at 03:38:47 PM PST

        [ Parent ]

    •  shorter court opinion (1+ / 0-)
      Recommended by:
      Adam B

      Here, I'll sum it up for you:

      They can't do it, but they can do it, just after we set an arbitrary time limit impossibly endangering the separation of powers by borrowing the rule from the executive branch. But they can't do it because teh gayz want it and it involves "the Internets."

      As I said on another thread: if I was Judge Walker I would stay the trial for 30 days until the notice period was accomplished just to stick it up their butts. But that kind of temper is why I'll never be a federal judge.

      I wouldn't read anything into this about Kennedy. He wants another page in the history books, so his vote is up for grabs, but on this kind of thing, he doesn't want Nino to yell at him.

      I support Bernie Sanders.

      by Attorney at Arms on Wed Jan 13, 2010 at 03:37:34 PM PST

      [ Parent ]

  •  Allowed to hate in secret (6+ / 0-)

    Something tells me if the majority in this opinion asn't anti-gay already they would be in favor of broadcast.

    "Won't you try just a little bit harder? Couldn't you try just a little bit more?" - R. Hunter

    by mungley on Wed Jan 13, 2010 at 02:47:42 PM PST

  •  This would not seem to bode well... (3+ / 0-)
    Recommended by:
    emsprater, BludevlsAdvocate, Nax

    ... for when the case gets appealed to them.

  •  Bush v Gore (0+ / 0-)

    And it will stay that way until someone on the right retires or dies. Another enduring legacy of the Cheney administration.

    not another dime to the dnc, dscc, dccc until i have my civil rights.

    by scooter in brooklyn on Wed Jan 13, 2010 at 02:48:21 PM PST

  •  fear of transparency (1+ / 0-)
    Recommended by:
    lgmcp

    simplicity is the most difficult of all things

    by RichardWoodcockII on Wed Jan 13, 2010 at 02:49:28 PM PST

  •  You know this means somewhere there are (5+ / 0-)

    going to be forces at work trying to grab the video which is being taken and put it on the web. It will happen, leaks are a fact of life. And by trying to hide behind a veil of secrecy these folks will in fact become even more of a spectacle when that happens. I wonder if they are so naive as to think it won't?

    I stand by the truth, that way I don't have to be near any Republicans.

    by ontheleftcoast on Wed Jan 13, 2010 at 02:50:23 PM PST

    •  We could hire the guys in Afghanistan who (1+ / 0-)
      Recommended by:
      ontheleftcoast

      tapped into the Predator drone video feeds with the technological equivalent of two turntables and a microphone.

      Caveman: so easy a Scalia can do it.

      "We did our duty as human beings: helping people in need." Miep Gies 1909-2010

      by here4tehbeer on Wed Jan 13, 2010 at 04:30:39 PM PST

      [ Parent ]

      •  I'm going to steer clear of sponsoring (0+ / 0-)

        or even encouraging such an event. I'll merely point out that in this era with "teh tubez" I'm surprised it hasn't already happened but certain that it eventually will.

        I stand by the truth, that way I don't have to be near any Republicans.

        by ontheleftcoast on Wed Jan 13, 2010 at 04:32:23 PM PST

        [ Parent ]

  •  Is the outcome of this trial preordained by (0+ / 0-)

    this 5 - 4 ruling?

    Actually, Mother DOES take sides...

    by Rumarhazzit on Wed Jan 13, 2010 at 02:51:21 PM PST

  •  Yosemite Sam said it best. (1+ / 0-)
    Recommended by:
    Julie Gulden

    $#!^ #&(@# $%^^#@%!

    "Most of the important things in the world have been accomplished by people who have kept on trying when there seemed to be no hope at all" Andrew Carnegie

    by pantherq on Wed Jan 13, 2010 at 02:53:00 PM PST

  •  Bigotry is best served cold and in the dark. (3+ / 0-)
    Recommended by:
    boadicea, splashy, emsprater

    What a crock.
    This is about our lives and rights to be an equal part of this society.

    Let there be light on the dark forces of bigotry.

    Shame!

    Gay Agenda: 1. Equality 2. See #1

    by skip945 on Wed Jan 13, 2010 at 02:53:19 PM PST

  •  this is one of the most political (5+ / 0-)

    majority opinions I have seen in a while, all about politics

    •  On televising court proceedings? (0+ / 0-)

      Simple desire to be less personally accountable , is human nature, and judges ARE human.

      "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

      by lgmcp on Wed Jan 13, 2010 at 02:59:36 PM PST

      [ Parent ]

  •  Wow so essentially the (5+ / 0-)

    conservatives on the court are standing up for the already-protected rights of majority citizens, and arguing that they're doing so because of the threat that evil gays will beat up Yes on 8 supporters.

    Way to fight the power!

    "Everybody lies... except POLITICIANS? House, I do believe you are a romantic."

    by indiemcemopants on Wed Jan 13, 2010 at 02:54:09 PM PST

  •  Sunshine will help us (2+ / 0-)
    Recommended by:
    Julie Gulden, Boudicia Dark

    but the case is unfolding a fascinating and far from discouraging manner, so far.  

    My dissappointment over the camera issue is tempered by my excitement over the actual proceedings.

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Wed Jan 13, 2010 at 02:55:15 PM PST

  •  Blocks YouTube or the courthouse streams (1+ / 0-)
    Recommended by:
    lgmcp

    Adam, from what I'm reading, this ruling only seems to affect the realtime, live streams that were planned for the courthouses in San Francisco, Pasadena, Seattle, Portland, and Brooklyn and not to the "tape"-delayed digest that was planned for YouTube. The ruling itself states

    We do not address other aspects of that order, such as those related to the broadcast of court pro- ceedings on the Internet, as this may be premature.

    Granted the Defendant-Intervenors could file for a stay for that, but that would be a separate ruling. This ruling seems to disavow judgment on that aspect, which would be potentially more useful than the live streams to five Federal courthouses.

    "So it was OK to waterboard a guy over 80 times but God forbid the guy who could understand what that prick was saying has a boyfriend."--Jon Stewart

    by craigkg on Wed Jan 13, 2010 at 02:55:47 PM PST

  •  GOP hates open government (1+ / 0-)
    Recommended by:
    ShempLugosi

    The teabaggers have been saying this about the health-care negotiations over the last couple of weeks.

    Now it seems the tables have turned.

  •  A question re per curiam rulings (0+ / 0-)

    It's a per curiam opinion, meaning no single justice in the majority is taking ownership of it, but it is the conservative majority authoring the opinion with the four remaining justices dissenting.

    I've long wondered about this since Bush v. Gore, which was the first per curiam ruling I saw that was not unanimous.

    I worked in the caselaw department of Thompson West in the 1990s (when it was still West Publishing) and one of the perks was that I, someone who finds the law fascinating, got unfettered access to Westlaw back before every decision imaginable was available online, and I got to read a lot of decisions.

    Bush v. Gore stood out, at least to me, for the fact that it was a "split decision" and a per curiam ruling.

    Is that unusual?

    (I don't really know - I am not an attorney)

  •  I knew it was you, Scalia. (1+ / 0-)
    Recommended by:
    pmukh

    You broke my heart.

    Rome wasn't burnt in a day.

    by Rob Cole on Wed Jan 13, 2010 at 02:56:27 PM PST

  •  Just sad and sickening (4+ / 0-)
    Recommended by:
    splashy, OHdog, sfbob, ShempLugosi

    The bigots are afraid to be televised because of death threats, discrimination, business boycotts, etc. But they're not afraid to scream ugly remarks, write nasty letters, produce appalling ads and vote away peoples' civil rights. Well, screw them. So they know by this filing how they make gays feel. And only when their own ugliness would be shown to all for what it is do they cower in fear. Cowards---all of them.

    Keep your cynicism off my optimism, thanks

    by Its any one guess on Wed Jan 13, 2010 at 02:57:17 PM PST

  •  What if the trial was about, say, (1+ / 0-)
    Recommended by:
    crystal eyes

    the constitutionality of DADT, and the gay servicemembers did not want their testimony broadcast for "fear of irreparable harm?"

    Think the Court would have stayed broadcast of the video?

    •  The SCOTUS has already (0+ / 0-)

      refused a DADT case recently I think.

      "Everybody lies... except POLITICIANS? House, I do believe you are a romantic."

      by indiemcemopants on Wed Jan 13, 2010 at 03:00:17 PM PST

      [ Parent ]

    •  Actually there has been talk of this... (2+ / 0-)
      Recommended by:
      Adam B, emsprater

      ...but with respect to Congress and hearing on DADT. No active duty GLBT service members can testify to the effects of DADT without being subjected to involuntary separation because of DADT. There were some murmurs that the committee may give "immunity" from DADT to service members that testify on DADT so that all sides can fairly be heard.

      "So it was OK to waterboard a guy over 80 times but God forbid the guy who could understand what that prick was saying has a boyfriend."--Jon Stewart

      by craigkg on Wed Jan 13, 2010 at 03:03:23 PM PST

      [ Parent ]

  •  Ask yourself why what would appear (1+ / 0-)
    Recommended by:
    lgmcp

    to be a non-ideological issue is clearly ruled upon along ideological lines.  I suspect, contra the majority opinion, it has nothing to do with what the rules say.

    Denial is complicity.

    by Publius2008 on Wed Jan 13, 2010 at 02:58:05 PM PST

  •  Yet another legacy of the Gang of 14 (0+ / 0-)

    A liberal is a conservative who's been hugged.

    by raatz on Wed Jan 13, 2010 at 03:00:06 PM PST

    •  (And this is where I get into trouble here.) (3+ / 0-)

      There was no reasonable argument to block Roberts' confirmation as Chief Justice.  It's hard to think of a more qualified pick for a Republican President to have made, and given Republican control over the Senate at the time ...

      Show Dems in R-Leaning Districts Who Voted For Health Care, Against Stupak: We've Got Your Back

      by Adam B on Wed Jan 13, 2010 at 03:08:21 PM PST

      [ Parent ]

      •  I would agree with you (3+ / 0-)
        Recommended by:
        Adam B, splashy, cartwrightdale

        that Roberts is not an idiot and is not unqualified... there was no reason to BLOCK his confirmation, but there were plenty of reasons to vote no.

        There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn't have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court -- adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts.

        The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

        "Everybody lies... except POLITICIANS? House, I do believe you are a romantic."

        by indiemcemopants on Wed Jan 13, 2010 at 03:22:29 PM PST

        [ Parent ]

  •  excellent dissent (7+ / 0-)

    destroys the "irreparable harm" argument, notes lack of precedent for "this extraordinary intervention" and states the obvious public interest in access to the courts.

    Someday the good guys will be writing the majority opinions.

    •  Just wait (5+ / 0-)

      This evening we're going to see some pro-Prop 8 bloviator appluading this decision on TV for protecting them from being "outed" as being a prop-Prop 8 asshat who could be subjected to "harassment" if only the public could see and know who they are.

      As Breyer noted:

      All of the witnesses supporting the applicants are already publicly identified with their cause. They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the State advocating a “yes” vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse.

      "So it was OK to waterboard a guy over 80 times but God forbid the guy who could understand what that prick was saying has a boyfriend."--Jon Stewart

      by craigkg on Wed Jan 13, 2010 at 03:08:41 PM PST

      [ Parent ]

  •  Not quite breaking news (3+ / 0-)
    Recommended by:
    shaharazade, OHdog, ShempLugosi

    that the Supremes are 5-4 asshat wingnut.

    There is lots more damage ahead from that high court before the balance tips to our side.

    If cats could blog.... they wouldn't.

    by crystal eyes on Wed Jan 13, 2010 at 03:01:00 PM PST

  •  Funny damn definition of "harm." (1+ / 0-)
    Recommended by:
    shaharazade

    Apparently, according to the SCOTUS, having any interested parties see that you're an anti-gay-marriage asshole would be "harm," but having LGBTs get equal protection under the law would be harm.

    Thank FSM that usually, once finally approved, equal rights can't be reversed. That wasn't the case this time, and I just wish that it really was human rights for everybody, no exceptions. Damn, DAMN!

    We MUST keep on keepin' on, no matter what. True equality is getting closer every year.

    Haiti had nothing. Now they have less. Please hel

    by SciMathGuy on Wed Jan 13, 2010 at 03:05:23 PM PST

  •  The only irrepairable harm (1+ / 0-)
    Recommended by:
    BludevlsAdvocate

    I can see is that granting this TRO ensures that the applicants will not be shown to the general public be the narrow-minded, bigoted, homophobic jack-@sses that they are.

    Chilling effect my @ss.

    This decision is every bit as lame as the Court's reasoning in Bush v Gore II

    Our promises are made in proportion to our hopes, but kept in proportion to our fears.-LaRouchefoucauld

    by luvsathoroughbred on Wed Jan 13, 2010 at 03:07:08 PM PST

  •  Conservative majority protecting its rule against (1+ / 0-)
    Recommended by:
    shaharazade

    which will come at some point in the process.

    As Olson noted, it was key to building public support, or more correctly confronting irrational fears. Olson concluded that any rational person would agree with their view legally and that his purpose in bringing in the "nice people" to testify, it would humanize gays wanting to marry in the eyes of those who are currently against it but who have a view that is distorted by Fox and other GOP media.

  •  Why do I feel like Bush v Gore all over again (0+ / 0-)

    This just feels like another bullshit decision that the SCOTUS should not even be involved in. Why should they care whether a lower court televises a trial? Am I missing something?

  •  Once upon a time... (4+ / 0-)

    people who were gay had to stay in the closet. They feared reprisal and societal condemnation.

    Now I hear Prop 8 supporters don't want their federal trial televised. They say it would cause many of their witnesses to not testify. They fear reprisal and societal condemnation.

    Interesting, huh? The script has been flipped.

    What does that say about who is winning?

  •  It's time to send Scalia & Thomas big game (0+ / 0-)

    hunting with Cheney!

    Mr. President, I realize you've got a lot on your plate, but we've been starving at the back of the line. Please throw us a few crumbs like ending DADT & DO

    by tnichlsn on Wed Jan 13, 2010 at 03:14:26 PM PST

  •  to me, the most amusing aspect (3+ / 0-)
    Recommended by:
    splashy, indiemcemopants, shaharazade

    is that the "conservative federalists" will all of a sudden decide against federalism and local control if it will lead to outcomes that run counter to the social engineering they would like to see the Court conduct.

    oops. I hope the gate wasn't too expensive.

    Twitter: @DanteAtkins

    by Dante Atkins on Wed Jan 13, 2010 at 03:22:25 PM PST

    •  They did this sort of thing (0+ / 0-)

      with guns too. The Thune amendment. I don't have a link but the purpose was to ignore states' rights and make concealed-carry part of federal law... or somesuch thing. And it failed but lots of Republicans voted for it.

      "Everybody lies... except POLITICIANS? House, I do believe you are a romantic."

      by indiemcemopants on Wed Jan 13, 2010 at 03:25:12 PM PST

      [ Parent ]

  •  How Is That Irreparable Harm? (2+ / 0-)
    Recommended by:
    shaharazade, ozsea1

    Just so I have this straight, the majority is claiming that having a video of the testimony could have a "chilling effect" on people testifying. But unless they're holding the trial in secret, won't people be able to put names together with the transcript? And there are these things called newspapers that have been around for a while that will print the names of people who testified & what they said.

    From Wisconsin Gas Company v. Federal Energy Regulatory Commission, 758 F.2d 669, 244 U.S.App.D.C. 349:

    "First, the injury must be both certain and great; it must be actual and not theoretical. Injunctive relief ‘will not be granted against something merely feared as liable to occur at some indefinite time.’ It is also well settled that economic loss does not, in and of itself, constitute irreparable harm... Implicit in each of these principles is the further requirement that the movant substantiate the claim that irreparable injury is ‘likely’ to occur. Bare allegations of what is likely to occur are of no value since the court must decide whether the harm will in fact occur. The movant must provide proof that the harm has occurred in the past and is likely to occur again, or proof indicating that the harm is certain to occur in the near future."

  •  This should put to rest any illusion we'll win at (2+ / 0-)
    Recommended by:
    emsprater, shaharazade

    the Supreme Court.  It is worth reading this opinion in full. It represents the first impression that the Court has formed of this case, and the majority makes the pro-gay marriage side sound like terrorists and the anti-gay marriage side out to be victims of harassment and abuse. Very disheartening.

  •  I concur in part and dissent in part. (2+ / 0-)
    Recommended by:
    shaharazade, sfbob

    I concur that the lower Court failed to properly amend its local rule regarding the broadcast of trial proceedings. I dissent from the majority's argument that the applicant's would suffer irreparable harm if their testimony were broadcast on the internet, as opposed to merely reproduced in live blogging, contemporaneous news reports, and publication of the trial transcript. The Majority's ruling defies logic and common sense, and appears to be an attempt to shield the applicant's from negative public scrutiny of their bigotted and legally bankrupt viewpoints.

    •  Don't know about the concur part (0+ / 0-)

      Cause I haven't read the local rules.  BUT you are spot on about the dissent.  What's to stop any newspaper or TV reporter in the country from reporting in detail on the trial, including naming the experts, where they are employed, and what they said.  In fact, folks who are intent on harassing witnesses will not be stopped by keeping cameras out, it just makes it a few more Google clicks away.  Shows how totally out of touch the "majority" is.

  •  This is not a good ruling however (1+ / 0-)
    Recommended by:
    CherryTheTart

    it is not as though the hearing is going on in secret. It would be far better to have the testimony of both sides appearing, if not in real time than in video form but the transcript is a matter of public record. It may not be right away but nonetheless the testimony of the haters will be available in black and white for everyone to roll their eyes at.

    So my take on this is that it isn't good but all is not lost.

  •  Does not bode well. (0+ / 0-)

    It makes me very uncomfortable that Kennedy joined the majority on this issue.

  •  Huh. Case closed. (1+ / 0-)
    Recommended by:
    emsprater

    Crystal Ball says that we will win at this level, win at the next, and eventually this same Supreme Court will have the final say.

    And now we know how they will vote.

    its over. Nothing to see here. Move along.

    "I'm just sayin... don't bring that horse in here!" -- Cassandra

    by tc59 on Wed Jan 13, 2010 at 07:40:15 PM PST

  •  We already know how this will end. (0+ / 0-)

    5/4 in the U.S. Supreme Court in support of Prop. 8. That's why it's being run now. Clear as day.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site