Tomorrow's New York Times is set to make a pretty interesting argument about how the Proposition 8 case got to the Supreme Court. SCOTUS correspondent Adam Liptak thinks that in defiance of conventional wisdom, the court's conservative bloc was behind the decision to grant cert to this case.
The aha moment came on Tuesday.
After Justice Anthony M. Kennedy suggested that the court should dismiss the case, Justice Antonin Scalia tipped his hand.
“It’s too late for that now, isn’t it?” he said, a note of glee in his voice.
“We have crossed that river,” he said.
That was a signal that it was a conservative grant.
According to Liptak, no one expected SCOTUS to take the case. At the very least, court-watchers thought the justices would sit on it until they finished the DOMA case. Some thought they'd simply let the Ninth Circuit's overturning of Prop 8 stand. But Liptak thinks that Scalia, Thomas and Alito realized that their chances of winning wouldn't get any better as more people became supportive of marriage equality. They must have convinced Roberts or Kennedy--most likely Roberts--of this as well.
The oral arguments appear to bear this out. The court's four liberals all support same-sex marriage in principle, but were falling all over themselves to avoid a definitive answer.
So why did they even take the case in the first place? Well, according to University of Texas law professor H. W. Perry (no relation to Governor Goodhair), this case was simply too high-profile to turn down. He points out, however, that this case has a lot of "exit points"--the most likely one being that Dennis Hollingsworth and the Campaign for California Families don't have standing to appeal the decision. That will likely have the effect of letting the Ninth Circuit's ruling stand and allow same-sex marriage in California.
If SCOTUS does go that route, you can take it to the bank that the fundies will roll out the talking points about nine unelected men and women in black robes subverting the will of the people. But if this analysis is accurate, they might want to reserve their ire for the four justices who, on paper, should be on their side.