Suzanne Goldberg and I sat through the entire two hours of the Prop 8 argument yesterday – we had it broadcast for faculty and students in three different places in the law school. If you missed it, you can watch it or read the transcript here.
Goldberg was riveted by the first hour on standing. But then she’s a Civ Pro jock, and I wouldn’t expect otherwise. From my less informed vantage point, I’d put my money on the three-judge panel certifying the standing issue back to the California Supreme Court. Nan Hunter over at Hunter of Justice had the same take, and explained it better than I could (she’s also a Civ Pro jock):
Judge Reinhardt strongly suggested that he was inclined to certify a question to the California Supreme Court to help resolve whether the proponents of Prop 8 had standing to appeal Judge Walker’s order. That means that the Ninth Circuit will suspend its consideration of the issues until the California Supreme Court answers the question of whether, under state law, the proponents of a ballot initiative would have standing to defend it in a context in which state officials decline to do so. (Generally, private citizens lack standing to participate as a defendant in a challenge to a law, but here both the governor and AG opted not to appeal Walker’s decision.) If I had to bet on what the next stage in this saga would be, I would bet that this part of the case will be referred to the state supreme court. (This is not unusual when a federal court has to resolve the meaning of a state law in order to get to the federal question in the case.)
My ear perked up when the merits argument began in the second hour (though I loved the hot mike during the break between the two hours – much lawyer hob-nobbing, back-slapping and “good jobbing” – courtrooms are so similar to locker rooms!). No sooner had the lawyer representing the Prop 8 defendants, Charles Cooper, begun his opening statement saying that the people of California had the sovereign power to determine the law by which they were governed than Judge Reinhardt interrupted: “But could the people of California reinstate school segregation?” Great question, because of course, there are limits on what the people can do through the proposition system, and among those limits are equal protection guarantees from the U.S. Constitution’s Equal Protection Clause. Popular sovereignty, while attractive in some respects, does not allow the majority to deny the fundamental or equal rights of the minority, even if they have the votes to do it. That’s what it means to live in a Constitutional democracy.
But the two cents of analysis I’d like to offer here has to do with the quality of the arguments on the side defending Judge Walker’s opinion in which Proposition 8 was found to violate the U.S. Constitution. Ted Olsen got up to make the case on the merits (David Boies got the standing argument), and he delivered, in essence, a sermon on the sanctity of marriage. He began by declaring that the case was about “access to the most important relationship in life.” He offered the court moral arguments for why his side should win, and when the court finally interrupted him (you could see how they deferred to his reputation and stature by letting him go on uninterrupted much longer than the other lawyers), they asked him about the legal issues in the case. His answers parried back to morality and for the most part avoided a direct answer to the legal concerns the court had.
Goldberg and I yelled at the screen: “Answer the question!” He never really did.
Then Therese Stewart, San Francisco Chief Deputy City Attorney, stood up to argue on behalf of the City’s interest in the case. She was fabulous. She was composed, articulate, argued the equal protection claim in an economical, persuasive and confident fashion. She addressed the court’s legal concerns, but due to the pre-argument agreement about allocation of time, she had been allotted very little time to make her arguments to the 3 judge panel, ceding much of her time to Olsen. Too bad, she should have been the lead lawyer in the case.
If you watch the video closely, you’ll see that near the end of Stewart’s argument Judge Reinhardt passes a note to the judge on his right, Michael Hawkins (a Clinton appointee). Here’s my guess on what the note said: “They should have let Stewart do the whole argument.”