The Supreme Court Justices hearing the Prop 8 case this morning were all over the place. I have posted at TheNation.com an elaboration of why the best word to describe the argument is fractured. To see if you agree with me, you can read the transcript for yourself, and listen to the argument as well.
By far the most dominant topic during the argument was standing, whether the Prop 8 defenders could step into the role of the state officials who declined to defend the provision when it was challenged. Justice Kennedy initially seemed less troubled than several other Justices by the standing question and more concerned that the decision by California voters could die by default unless the Court allowed the groups that organized the campaign to pass Prop 8 were allowed to undertake its legal defense.
Late in the argument, however, he raised an even more fundamental question: whether the Court should have granted review in the first place, since gay marriage raises issues about children that constitute, in his view, “uncharted waters,” and the Ninth Circuit Court of Appeals decision was “very narrow” with “an odd rationale.”
It would be highly unusual, though not unprecedented, for the Court to conclude after briefing and argument that review was “improvidently granted.” Such a result would require five Justices, and actually killing the case on those grounds seems like a long shot. When Justice Sotomayor noted that the Court let issues of racial segregation percolate for 50 years, so taking a pass on a gay marriage dispute that is only four years old sounded sensible, Justice Scalia sought to cut off the exit option. “It’s too late,” Scalia said; “we’ve crossed that river.”
My own prediction: it is at least quite possible that there will be no majority opinion of the Court. With a sharply divided Court, as this one is on multiple issues, that non-result happens with some frequency. What does “no majority” mean? If no single opinion is signed by at least five Justices, there is no precedent established that binds all other courts. For example, three Justices (Ginsburg, Sotomayor, Kagan?) may conclude that Prop 8 is unconstitutional, and two additional Justices (Kennedy, Breyer?) might conclude that the Prop 8 defenders lack standing or that the decision to grant cert should be reversed. Even if the largest number (four) of Justices on any one opinion agree that there is standing and that Prop 8 should be upheld, there would no one binding opinion.
The outcome in that kind of split would leave the trial court’s ruling that Prop 8 is in place, because there would be no majority to reverse. The marriage litigation wars would continue with virtually nothing having been decided.