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NYT: Scalia plotted to take Prop 8 case against liberals' wishes

The bastard thought his chances of sticking it to us would only get worse.

[bold]Who Wanted to Take the Case on Gay Marriage? Ask Scalia[/bold]

By ADAM LIPTAK

WASHINGTON — Why did the Supreme Court agree in December to hear a major same-sex marriage case and then seem to think it had made a terrible mistake on Tuesday when it came time for arguments?

The answer lies in the gap between two numbers. It takes four votes to hear a case and five to decide one.

If nothing else, this week’s arguments provided a telling glimpse into the process through which the court selects its docket, one that is usually shrouded in exceptional secrecy. The arguments also cleared up most of the mystery of whose idea it had been to hear the case, a challenge to Proposition 8, California’s ban on same-sex marriage.

As it turns out, it would seem that the conservative members of the court, making a calculation that their chances of winning would not improve with time, were behind the decision to take up the volatile subject.

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.

To see why, it will help to review the bidding. When the justices gathered for their private conference on Dec. 7, they had many choices.

For starters, it was virtually certain that they would agree to hear one of several challenges to the federal Defense of Marriage Act of 1996. Two federal appeals courts had struck it down, and the court almost always reviews decisions from lower courts invalidating federal laws.

The question there, moreover, was the relatively modest one of whether the federal government must provide benefits to same-sex couples married in states that allow such unions. The case did not directly concern whether there is a right to same-sex marriage in other states.

So the justices chose one case on the 1996 law, United States v. Windsor, No. 12-307.

They then confronted a second, much more ambitious case, Hollingsworth v. Perry, No. 12-144, concerning whether the Constitution guarantees a right to same-sex marriage. Most observers thought the court would hold the case while it worked through one on the 1996 law, and some thought it might deny review, letting stand an appeals court decision that had struck down Proposition 8.

Instead, the court granted review in the case. That was a surprise and a puzzle. Who had voted to hear it?

One school of thought was that the court’s four liberals were ready to try to capture Justice Kennedy’s decisive vote to establish a right to same-sex marriage around the nation.

That theory was demolished in the courtroom as one liberal justice after another sought to find a way to avoid providing an answer to the central question in the case. The decision to hear the case, it turned out, had come from the other side.

Justice Scalia, almost certainly joined by Justices Clarence Thomas and Samuel A. Alito Jr., apparently made a twofold calculation: that their odds of winning would not improve as same-sex marriage grows more popular and more commonplace, and that Justice Kennedy, who is likely to write the decision in the case concerning the 1996 law, would lock himself into rhetoric and logic that would compel him to vote for a constitutional right to same-sex marriage in a later case.

It is not that the conservatives felt certain they would win. It is that their chances would not improve in the years ahead.

That leaves the question of the fourth vote. The most likely answer is that it was that of Chief Justice John G. Roberts Jr., though he did not sound at all pleased on Tuesday to have the case before him.

There is also a chance that the fourth vote came from Justice Kennedy himself, and his very questioning provides support for that theory.

by Anonymousreply 5403/31/2013

“I just wonder,” he said, sounding a little plaintive and a little angry, “if the case was properly granted.”

According to “Supreme Court Practice,” the leading manual on Supreme Court procedure, it is bad form for a justice who voted to deny a petition to thwart a decision on the merits.

“The reason strikes deep,” Justice William O. Douglas explained in 1952. “If four can grant and the opposing five dismiss, then the four cannot get a decision of the case on the merits.”

There may, of course, have been more than four votes to grant review. Tallies are never published by the court, but they do emerge years later in the justices’ papers. Historically, the court agreed to hear between a quarter to a third of its cases by just four votes.

The decisions are made on most Friday mornings during the Supreme Court term, when the nine justices meet in a private conference to vote on which cases to hear. No one else is allowed inside the room.

Under the court’s internal rules, a case is added to the docket if four justices agree. Decisions to hear cases — to grant petitions for certiorari, in court lingo — are announced in terse orders, without explanation or an indication of who voted how.

Margaret M. Cordray, a law professor at Capital University in Columbus, Ohio, who has studied the process, said it lacks most of the qualities of traditional judicial work, including deliberation, accountability and majority rule.

In examining the papers of Justices Harry A. Blackmun, William J. Brennan Jr. and Thurgood Marshall, though, Professor Cordray said she did find “pretty strong evidence that the justices act more strategically in high-profile cases.”

The court dismisses cases as “improvidently granted,” or “DIGs” them, a couple of times a term. But that outcome is unlikely here, said Dennis J. Hutchinson, who teaches law at the University of Chicago and is an authority on the court.

“If they DIG it now, after all of the fanfare and all of the attention and all of the amicus briefs,” he said, “it will look like they didn’t know what they were doing at the outset.”

Still, said H. W. Perry Jr., a law professor at the University of Texas, “it is a case that allows a lot of exit points.” The one that seemed most attractive to a majority of the justices on Tuesday was that supporters of Proposition 8 did not have standing to appeal from a decision entered against state officials.

A dismissal on standing grounds could lead to some messy follow-on litigation in California but will probably effectively allow same-sex marriages there.

So why did the court agree to hear the case?

“The justices can’t quite resist getting involved in major cases,” Professor Perry said. “This is going to come out quite unsatisfactorily to a lot of people.”

Who is to blame? That will have to await the release of the justices’ papers many years from now.

“We won’t know,” said Michael C. Dorf, a law professor at Cornell, “for another 50 years.”

by Anonymousreply 103/30/2013

he's a horrible cunt

by Anonymousreply 203/30/2013

of course

by Anonymousreply 403/30/2013

I read the entire OP post and have to say I have no idea what it means.

by Anonymousreply 503/30/2013

What it means is that one of the head jurists in this country is deciding a case before it even comes before the court.

That is cause for impeachment.

by Anonymousreply 603/30/2013

We need to celebrate his death like we did Jerry Falwell's.

by Anonymousreply 703/30/2013

Scalia was appointed by that demented old whore Reagan.

by Anonymousreply 803/30/2013

If true, can't/won't Roberts (as he did with Obamacare) make up his own damn mind, considering his legacy?

by Anonymousreply 903/30/2013

Scalia is perhaps the vilest evil villain to ever come down the pike.

by Anonymousreply 1003/30/2013

He is right, if this case came before them in a few years they would pretty certainly issue a sweeping ruling.

But then, what is really the point of kicking the bucket down the field? Even Scalia is pointing out that the inevitable is the inevitable.

by Anonymousreply 1103/30/2013

This is all much ado about nothing. Those like R10 would have whined if the Court hadn't taken it. And Olsen/Boies have been pushing to get it before the Court for years. They have tightened their arguments so this won't be a partial decision. They are good and think they can win it. That fucking wussy Kennedy will be the swing vote and that's why he was whining. He knows they are right legally, but he doesn't want the Catholic Church or others he is close to upset with him.

by Anonymousreply 1203/30/2013

Scalia is so fat. When will he and his hairy, low-hanging breasts die?

by Anonymousreply 1403/30/2013

His pussy stinks even worse than mine!

by Anonymousreply 1503/30/2013

If Roberts is concerned about his legacy, you can bet he is watching Scalia and using his actions as a template NOT to follow.

by Anonymousreply 1603/30/2013

we can only hope.

by Anonymousreply 1703/30/2013

Another serving of ziti, Antonin?

by Anonymousreply 1803/30/2013

R13, it still boils down to Kennedy as the swing vote. Scalia may be glad to see Kennedy sweat, and will certainly try to sway him, but that purple prose the NYT columnist wrote is just that.

by Anonymousreply 1903/30/2013

I can understand why Roberts and Kennedy wouldn't to hear or decide this case, but I still don't understand why the liberals wouldn't

by Anonymousreply 2003/30/2013

As the case stands, Prop 8 is unconstitutional, so taking the case is unnecessary if you favor gay marriage. Scalia is forcing them to either rule broadly too soon, which is politically dangerous (see Roe v. Wade), or rule narrowly which would harm the legal case for marriage equality down the road.

by Anonymousreply 2103/30/2013

I think Scalia is a self-loathing homosexual. And he wanted to be a Catholic and marry a woman and have 18 kids and be on the SCOTUS to make the gay go away.

by Anonymousreply 2203/30/2013

he has bed-wetter face in that photo.

by Anonymousreply 2303/30/2013

How many children DOES scalia have?

by Anonymousreply 2403/30/2013

[quote]Scalia is forcing them to either rule broadly too soon, which is politically dangerous (see Roe v. Wade), or rule narrowly which would harm the legal case for marriage equality down the road.

I agree that if it was the conservatives who voted to grant cert, they probably were calculating for a narrow holding, if not a win. But I don't think that a narrow decision necessarily harms the chance for a broad ruling in future cases. If I had to bet, I'd expect the two cases together advance the cause, even if there is no clear majority for the strongest Equal Protection argument; if marriages resume in Cali and proceed elsewhere, and if the federal gov't has to recognize them, the case is effectively won

by Anonymousreply 2503/30/2013

He was actually good-looking in R22's photo. His evil heart made him uglier with every passing year.

by Anonymousreply 2603/30/2013

There is winning and winning big. The latter would be a decision that all states must permit gay marriage. I think that decision would be counter-productive in that it would generate a Roe-size organized backlash. Better to let the states decide politically for a while as long as DOMA is gone.

by Anonymousreply 2703/30/2013

please let r25 be right!!!

by Anonymousreply 2803/30/2013

This is what stood out like a raging hard on for me:

[quote]Justice Kennedy, who is likely to write the decision in the case concerning the 1996 law, would lock himself into rhetoric and logic that would compel him to vote for a constitutional right to same-sex marriage...

So in other words, Scalia, Thomas and Alito feel that logic dictates same sex marriage is legal. Interesting.

by Anonymousreply 2903/30/2013

The weird thing about Scalia to me is that he gets in a ton of exercise--he plays tennis constantly. He must just shovel food down his gut like it were his last meal every meal. I can't see how he (and Thomas for that matter) can be that big and not be diabetic.

by Anonymousreply 3003/30/2013

[quote] I think that decision would be counter-productive in that it would generate a Roe-size organized backlash.

I'm past giving a fuck what troglodytes think. Bring on their backlash if it means inequality perishes sooner.

by Anonymousreply 3103/30/2013

[quote]I think that decision would be counter-productive in that it would generate a Roe-size organized backlash.

I think we are past the tipping point on back lashes. If there were any organized back lash, it would make the equality argument even stronger. Most people are seeing this as equal rights and no longer a moral or religious argument, so it would show the whole world clearly who is a bigot and who is not.

For instance the Mich state repub rep who posted something hideous about gays on his facebook page was called out by his own party this past week, whereas maybe a few years ago, he would have been awarded with a Fox show and a permanent speaking slot on Sunday morning panels.

by Anonymousreply 3203/30/2013

r32 is right.

Yes, there will be people still trying to use us a wedge issue, but their days, truly, are numbered.

by Anonymousreply 3303/30/2013

The backlash thing is interesting. Thus far, at any rate, no nation that has instituted same-sex marriage has had such a backlash, though the Catholic Church has kept whining. Why is this issue so different from abortion?

by Anonymousreply 3403/30/2013

Do you realize how angry Anthony Kennedy might get if he knew the conservative justices were scheming this way? If only someone could get him and the liberal justices a copy of that obscure newspaper that this story appeared in. What was it again? The New York Times or something?

by Anonymousreply 3503/30/2013

Scalia is like a Marvel villain. Disfigured like Dr. Doom, seemingly unkillable like Apocalypse, and, apparently, he's gone insane after drinking the serum of his own hubris like the Green Goblin.

Thankfully, his kind never win.

by Anonymousreply 3603/30/2013

in the long run. they often win short battles.

by Anonymousreply 3703/30/2013

People keep saying Kennedy is the swing here but I think both Kennedy and Roberts could swing for a 6-3 ruling in favor of marriage equality. The DOMA case doesn't require it and will be struck down anyway but they could go all the way with the Prop 8 case; it will be found unconstitutional as well, it's just a matter of the scope of the ruling. Marriage equality is on everybody's lips, the majority of Americans support it, the under 30s are practically unanimous in their support so why wait?

People think the change has been so rapid but all of those state laws that are anti-equality were very much in response to the change that was happening even then. It was approaching tipping point then which is why those laws were enacted. They wouldn't have needed them if marriage equality wasn't becoming a possibility.

by Anonymousreply 3803/30/2013

Things were changing, R38, you're right about that. But in 2004 the public will was still against us pretty decisively. The right raced to get all those state constitutional amendments in place, with the aim of putting roadblocks in the way of legal change when the tide finally turned.

I just can't see a majority on the Supreme Court in favor of sweeping change in the Prop. 8 lawsuit. Even Ginsberg wouldn't go along with that, I think.

by Anonymousreply 3903/30/2013

Ginsberg has said that, while she agrees with the outcome, she thinks the sweeping decision in Roe v Wade was too broad and led to a backlash.

She is clearly right as to abortion rights: the Court's decision has been a rallying cry and a fundraising bonanza for the right for decades.

If the federal part of DOMA goes down, on whatever legal basis, that is HUGE. Let the states left discriminating do as they will for a while. People will vote, and also "vote with their feet" as states that discriminate lose business and talented young people to those states that recognize equality.

Within most of our lifetimes it will be decided in our favor nationwide, without undo controversy.

by Anonymousreply 4003/30/2013

I think abortion an reproductive rights are far tetchier issues than the concept of marriage equality. It's also intertwined with women's rights and the new freedom from the concept of being men's handmaidens. This created a lot of disruptions for men, whether they liked it or not, and powerful men and the institutions they ran fought and will continue to fight tooth and nail to maintain that status quo.

I think it's also easier to cling to the fetus when there's a lot of personal ambivalence about abortion and because the topic has the potential to affect many people on a very personal basis.

I believe in the long run, and even in the short run, it will be easier for the concept of "marriage equality" to become palatable or benign to many. Many will realize it's a non-issue, completely irrelevant to their lives.

by Anonymousreply 4103/30/2013

If red states are forced by judges in Washington to perform gay marriages in their states it will be very different from looking on with disapproval as blue states choose to allow it.

The red states will resist just as they have been relentless in effectively banning abortion and how the whole country resisted desegregated schools. For all practical purposes we are where we would be if there had never been Roe or Brown.

by Anonymousreply 4203/30/2013

no r42. not that dire.

by Anonymousreply 4303/30/2013

There will be plenty of justices of the peace in the south who will happily perform same sex marriages for a fee.

by Anonymousreply 4403/30/2013

Though Roe v Wade is important here in regards to establishing a right to privacy, I think other direct comparisons are somewhat spurious. While marriage equality is an emotive issue, once it's passed, even opposition tends to realise it's only a life changer if you're gay. The conflict over abortion is far more complex and intransigent.

The moment for marriage equality is now. Even the opposition realises they have nothing to gain through further politicisation of the issue.

by Anonymousreply 4503/30/2013

I whole heartedly agree that we should let this matter be decided state by state. To force the entire nation to automatically grant marriage for all would be a mistake in that the backlash would be epic in places like Mississippi and Oklahoma. I would very much NOT want to be gay in those places if that verdict came down. I could totally see any churches who dared to officiate over a gay wedding being firebombed the next week.

by Anonymousreply 4603/30/2013

I generally agree with you, R45, but the life changer for far rightists is that these couples will now be able to get benefits, both state and federal that they can't get now. Those people will be up in arms over their tax dollars going to these "freaks". That will result in all sorts of indirect5 actions to try to stop it.

by Anonymousreply 4703/30/2013

R46 If we took that attitude during the Civil Rights era, there would be schools in the south that are still segregated, black people would have to ride in the back of the bus, mixed race couples would not be able to marry... you get the picture. Civil rights are not something we give out once everyone feels comfortable about it.

by Anonymousreply 4803/30/2013

[quote]there would be schools in the south that are still segregated

Hello? What planet do you live on? Schools everywhere are still segregated.

by Anonymousreply 4903/30/2013

R49 I don't know what school you went to, by none of the schools I went to were segregated. Are you sure you know what the word means?

by Anonymousreply 5003/30/2013

Most of the white kids left the public schools wherever there was a significant black enrollment. North and South.

by Anonymousreply 5103/30/2013

R51

A people leaving a public school is NOT the same as segregation.

B absolute bullshit. Provide a link to back up your claim or be labeled a liar.

by Anonymousreply 5203/30/2013

Ohhh, you're going to label me a liar! Oh no!

It is the same thing as segregation. It's called white flight.

Here's a link in the hope that you'll slink away in shame

by Anonymousreply 5303/30/2013

R47? GAY PEOPLE PAY TAXES TOO.

by Anonymousreply 5403/31/2013
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