Larry Tribe predicts mixed results in Supreme Court, criticizes Obama and California

Prop8 SCOTUS Cop Crowd

The Harvard Law School website has an interview with Professor Larry Tribe with his predictions about what the Supreme Court is most likely to do in the two pending gay marriage cases:

[M]y hunch – and it is only that – is that the Court will narrowly conclude that the DOMA [Defense of Marriage Act] issue is properly before SCOTUS on the merits … and that the Court will hold DOMA’s Sec. 3 unconstitutional by a vote of 5-4, with Justice Kennedy relying heavily on the kinds of federalism considerations that Judge Boudin found persuasive in CA1 [U.S. Court of Appeals for the First Circuit] but with the more liberal four justices relying squarely on the equality component of fifth amendment due process.

As to Hollingsworth, however, I doubt that the Court will conclude that Chuck Cooper and the other private proponents of Prop 8, all lacking a fiduciary duty to California, have Art. III standing to defend it on the merits in the Supreme Court (despite what the state’s highest court concluded) and will dismiss that case on standing grounds, leaving in place Judge Walker’s statewide injunction against Prop 8 but setting no nationwide precedent. Alternatively, despite the Rule of Four, I wouldn’t be too surprised to see the Court dismiss cert as improvidently granted, leaving CA9’s [U.S. Court of Appeals for the Ninth Circuit] decision in place but again setting no nationwide precedent.

I believe that it is entirely appropriate, in the extraordinary circumstances presented both by DOMA and by Prop 8, for the executive branch, state or federal, to enforce the laws at issue until struck down by SCOTUS but to decline to defend those laws on the constitutional merits. I do nonetheless think that California should have made provision for some suitable official defense of Prop 8 in those circumstances in order to preserve the integrity of its initiative process and that the Obama administration should have arranged for the appointment of a special counsel, akin to the independent counsels appointed on earlier occasions, to defend Sec. 3 of DOMA in the federal courts once the President concluded that the Attorney General and Solicitor General should not do so…

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4 Responses to Larry Tribe predicts mixed results in Supreme Court, criticizes Obama and California

  1. Kathleen May 15, 2013 at 3:08 PM

    Did Professor Tribe refer to Chuck Cooper as one of the private proponents of Prop 8, or is this an error in reporting the interview? Either way, it should be noted that Cooper is the attorney representing the private proponents, but he is not a party in the case.

    • Nan Hunter May 15, 2013 at 3:17 PM

      You are correct that Cooper is not himself one of the parties. I think it is likely that Larry misphrased the comment, as I am quite sure he is aware of this fact.

  2. Rick May 16, 2013 at 12:11 AM

    In the Prop. 8 case, I think the Court has only 2 options: either uphold Prop. 8 or do something else.

    To uphold Prop. 8, there MUST be 5 votes for BOTH of two things: a majority of the Court must (1) find standing, and (2) reach the merits and conclude Prop. 8 is at least rationally connected to a legitimate state interest. This scenario, I believe, will be impossible because Justice Kennedy’s concern about federalism would never let him side with states that ban gay marriage, even if he is not now ready for a nation-wide judicial mandate for gay marriage. Moreover, a merit-based ruling in favor of Prop. 8 would run counter to Justice Kennedy’s libertarian instinct for equality.

    If there are, for sure, no 5 votes to uphold Prop. 8, then by process of elimination, the Court’s only option is to do something else (e.g., dismissal for lack of standing, DIG, or a 4-4-1 split with no majority opinion).

    So I’m wondering if Professor Hunter would agree with this bottom-line prediction: Prop. 8 will be gone NO MATTER WHAT, and the only remaining questions are how and when.

    Thank you!

  3. BradK May 27, 2013 at 9:18 PM

    “…California should have made provision for some suitable official defense of Prop 8 in those circumstances in order to preserve the integrity of its initiative process”

    As a CA resident I have to take umbrage at this suggestion. Absolutely nothing about Prop 8 or the vile campaign to get it passed deserves to be in the same utterance as the word ‘integrity.’ The duly elected officials of the State of California, including the Governor at the time, the Attorney General, and the bulk of the legislature did not back the passage of Prop 8. It was sold to the uninformed and easily manipulated voters through a carefully orchestrated offensive that preyed upon their irrational fears and prejudices. And was devised and funded by secretive, out of state, tax-exempt religious organizations — the LDS and the Catholic Churches — and their religious affiliates such as NOM. So much so that the LDS were found to be in violation of state campaign laws. If left to their own devices I doubt 52.5% of Californians would have voted to pass Prop 8.

    What is broken is the entire ballot initiative process, especially one that allows a state constitution to be defiled so readily. To suggest that state officials are somehow lacking in their duties by not actively defending such injustices — that it or they somehow lack integrity — is far off base.

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