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Author Topic: Waiting for the Supreme Court
hobsen
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The Supreme Court will decide what cases to review on the 20th and probably annnounce its choices on the 26th. David Boies predicts that the California Proposition 8 case will be heard, and that Proposition 8 will be struck down by the Court by more than the minimum number of votes. Surprisingly I have never heard of an attorney saying that he was appealing to the Supreme Court and expected to lose, either because his arguments were inferior or the other side's attorneys more competent. But expecting more than the bare minimum of votes needed to decide this case is unusual, and probably inspired by the conspicuous failure of Proposition 8 supporters before the 9th Circuit. When those asked for a rehearing by the full 9th Circuit, they were rejected by a vote of 21 to 4, suggesting most of the justices thought they had no case. The 9th Circuit tends to be liberal, so a vote of something like 18 to 7 might have been expected, but 21 to 4 was a result conspicuously humiliating to the appellants, and can be taken as a bad omen for them.

Anyway I should guess that the Court will indeed agree to hear the case, as ignoring it or allowing same sex marriages to resume in California without any consideration would lead to criticism from both sides.

http://www.mercurynews.com/samesexmarriage/ci_21971497/san-francisco-david-boies-predicts-prop-8-win

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Pete at Home
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Well, let's do the arithmetic.

Does anyone seriously think that any of the following four justices will vote yes to ssm?

John G. Roberts, Chief Justice of the United States
Antonin Scalia
Clarence Thomas
Samuel Anthony Alito, Jr.


That means that if Anthony M. Kennedy votes no on SSM, that it's no, period.

Anyone remember what Justice Kennedy said about SSM in his Lawrence v. Texas ruling?

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Adam Masterman
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quote:
Originally posted by Pete at Home:

Does anyone seriously think that any of the following four justices will vote yes to ssm?

John G. Roberts, Chief Justice of the United States
Antonin Scalia
Clarence Thomas
Samuel Anthony Alito, Jr.


Roberts may. The speculation following the health care ruling was that he was concerned about the legacy of the court as an institution, which is why he voted against his otherwise conservative alignment. He might find himself in a similar situation here, wanting to create a new Brown v. Board, instead of a new Plessy v. Ferguson.
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TomDavidson
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Actually, I think it's more likely that the court will look for a narrow ruling that strikes down Prop8 without ruling on whether or not same-sex marriage is a right.
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kmbboots
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Just because Justice Kennedy wrote that Lawrence v. Texas did not involve the government giving formal recognition to homosexual relationships doesn't mean that he believes that the government couldn't or shouldn't recognize such relationships.
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Adam Masterman
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Oh yes; there's no chance they will rule to recognize a national right to marry. That was an imperfect analogy; my suspicion is only that Roberts may want to avoid standing in opposition to an inevitable civil rights shift. And that's just a guess, he's a party-liner most days of the week.
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Pete at Home
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I'm hearing a lot of wishful thinking.
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Adam Masterman
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quote:
Originally posted by Pete at Home:
I'm hearing a lot of wishful thinking.

This from the guy who said SSM would have helped Romney *win*? [Razz]
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D.W.
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I highly doubt he would have gotten many Democratic votes even if he did divorce his wife and marry a man. Certianly not enough to offset his losses in the republican ranks. [Razz]
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Pete at Home
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quote:
Originally posted by Adam Masterman:
quote:
Originally posted by Pete at Home:
I'm hearing a lot of wishful thinking.

This from the guy who said SSM would have helped Romney *win*? [Razz]
If he'd used it. I noted repeatedly on this forum in the last few weeks that Romney wasn't using SSM, and that he'd lose for that failure. I also said that if he DIDN'T make SSM a campaign issue, that I'd probably abstain from the presidential vote.
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Adam Masterman
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quote:
Originally posted by Pete at Home:
quote:
Originally posted by Adam Masterman:
quote:
Originally posted by Pete at Home:
I'm hearing a lot of wishful thinking.

This from the guy who said SSM would have helped Romney *win*? [Razz]
If he'd used it. I noted repeatedly on this forum in the last few weeks that Romney wasn't using SSM, and that he'd lose for that failure. I also said that if he DIDN'T make SSM a campaign issue, that I'd probably abstain from the presidential vote.
Yeah, I knew what you were saying; that's why I raised it in the context of wishful thinking. SSM wins in every ballot initiative on it in the country, but somehow is still *so* unpopular it will cause more than three million people to change their votes? That's some spirited optimism. [Smile]
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TomDavidson
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I would be genuinely surprised if Republican strategists were not leaning on conservative members of the court to strike down Prop8, as the SSM issue is a time bomb for them and is best handled by being shoved as far a way as possible. Republicans don't need this albatross hung on them.
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Pete at Home
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quote:
Originally posted by Adam Masterman:
quote:
Originally posted by Pete at Home:
quote:
Originally posted by Adam Masterman:
quote:
Originally posted by Pete at Home:
I'm hearing a lot of wishful thinking.

This from the guy who said SSM would have helped Romney *win*? [Razz]
If he'd used it. I noted repeatedly on this forum in the last few weeks that Romney wasn't using SSM, and that he'd lose for that failure. I also said that if he DIDN'T make SSM a campaign issue, that I'd probably abstain from the presidential vote.
Yeah, I knew what you were saying; that's why I raised it in the context of wishful thinking. SSM wins in every ballot initiative on it in the country, but somehow is still *so* unpopular it will cause more than three million people to change their votes? That's some spirited optimism. [Smile]
I made that prediction before the outcome of the ballot initiatives.

Obamists made the smart decision to emphasize SSM where it would help them. Republicans failed to use the issue where it might have helped. The election might have turned differently if there had been a 2012 SSM initiative in Ohio.

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Adam Masterman
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quote:
Originally posted by Pete at Home:


Obamists made the smart decision to emphasize SSM where it would help them. Republicans failed to use the issue where it might have helped. The election might have turned differently if there had been a 2012 SSM initiative in Ohio.

There's nowhere where Romney lost, where SSM would have turned the tide. Its already a losing issue for republicans in swing states (including Ohio): link
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Pete at Home
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From your link:

"In Ohio, 52 percent say it should be legal, while 37 percent say it should be illegal."

Of course they do when you frame it as "illegal"

If the rightwads weren't laying down like limp noodles on this issue things might have gone differently.

[ November 13, 2012, 08:37 PM: Message edited by: Pete at Home ]

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Paladine
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quote:
John G. Roberts, Chief Justice of the United States
After his disgraceful ruling in the Obamacare case, I wouldn't put much of anything past this man. Adam's got it pretty close to right: he's interested in the Left perceiving the Court as "legitimate"; that seems to factor into his thinking at the expense of the law sometimes, and much to his detriment.
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Pete at Home
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I'm shocked that you'd hold marriage hostage to Obamacare.
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AI Wessex
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"If he'd used it. I noted repeatedly on this forum in the last few weeks that Romney wasn't using SSM, and that he'd lose for that failure."

You are saying he lost because he ran with too little emphasis on ideology and Democrats claim he lost because of too much of it. What's a severely conservative moderate to do?

I note that Romney lost his home state of Massachusetts by 23%. I remember when Republicans chortled loudly to themselves in places where they could be overhead by Democrats when Gore lost Tennessee by 3%.

Nothing Romney did or could have done would have changed the outcome. Each and every position shift he made got him 10 votes and cost him 12. The GOP should have dumped him after Isaac rained on his convention parade and run away from him when God gave us Sandy as a second warning. If he had actually won and an earthquake would have dumped his car elevator into the ocean would Republicans finally have listened?

[ November 14, 2012, 09:22 AM: Message edited by: AI Wessex ]

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Wayward Son
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Yeah, they would have listened--and nominated Rick Santorum instead. [Big Grin]
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Pete at Home
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quote:
Originally posted by AI Wessex:

Nothing Romney did or could have done would have changed the outcome. Each and every position shift he made got him 10 votes and cost him 12. The GOP should have dumped him after Isaac rained on his convention parade and run away from him when God gave us Sandy as a second warning. If he had actually won and an earthquake would have dumped his car elevator into the ocean would Republicans finally have listened?

As with our discussion re Reverent Wright, I'm amazed how political contingencies can flip you over to the religious side. Halleluiah and pass the snakes, brother.
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AI Wessex
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It's a sign, it's definitely a sign! Just like Katrina, which was divine retribution for gays and abortion. Except this time he did it twice so we know he wasn't kidding!
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Wayward Son
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That's the problem with Divine Signs. Most people interpret them to mean that they were right all along. [Smile]
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hobsen
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Well, this post was certainly timely, as it was made the same day the Supreme Court decided to take another ten days to decide which gay rights cases to review. Their discussion of this is now set for November 30, and its result should be announced in early December. Perhaps Pete can tell us whether such rescheduling is common, or a surprising development.

In addition Mitt Romney certainly ran away from gay rights issues. But the LDS Church was also conspicuously absent prior to the elections which brought same sex marriage to Maine, Maryland and Washington. Does anyone know why?

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Pete at Home
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"But the LDS Church was also conspicuously absent prior to the elections which brought same sex marriage to Maine, Maryland and Washington. Does anyone know why? "

There are over half a million LDS members in California.

Less than 40,000 in maryland, about 10,000 in maine, about 150,000 in Washington.

Not sure why there wasn't a higher presence in Washington state.

Historically, the LDS church has been sensitive to Supreme Court issues. They may have pushed the issue in California specifically in order to get it up to SCOTUS. No need for that at this point.

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hobsen
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Thanks for the figures. I was surprised by preliminary figures in Washington showing marriage equality supporters had a 13 to 1 advantage in fundraising, but now both sides are being accused of failing to report contributions when required, so that disparity was probably meaningless. Heaven knows what the final totals will be when they manage to report them.
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Pete at Home
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"I was surprised by preliminary figures in Washington showing marriage equality supporters had a 13 to 1 advantage in fundraising"

Doesn't surprise me at all. Conservatives really hung marriage out to dry this election.

Count the ads that mention marriage. The only way anyone could have learned that Romney opposed neutered marriage was from Obama ads, which framed it deceptively as "banning gay marriage." Big lie, since they are playing that in Nevada, where civil unions only was the law.

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hobsen
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The Supreme Court made no announcement today, as reported in SCOTUSblog by Lyle Denniston:
quote:
The same-sex marriage cases are complex because they involved a variety of constitutional issues, a series of procedural complexities, and then some scheduling considerations — such as who is to line up on which side of any granted case. If the Court is prepared to hear one or more of the cases, they still may want to re-write the questions in a form that they prefer to address, and that usually takes a bit of time. Although some of the Justices presumably have spent some time thinking about these cases, and perhaps having their clerks read some of the papers (and maybe doing so themselves), Friday’s Conference was very likely the first time that all nine Justices had a group conversation about them.

If granting any cases was going to be easy, the chances are that an order saying so would have come out by early in the afternoon. The fact that no order emerged until after 3 p.m. was the strongest indication that the Court had been spending extra time on these ten cases, without reaching a conclusion.

My initial post on this thread now strikes me as misleading, as it focuses on the Proposition 8 controversy, because it was from a California source. Actually nine of the ten cases involve DOMA - The Defense of Marriage Act (DOMA) (Pub.L. 104-199, 110 Stat. 2419, enacted September 21, 1996, 1 U.S.C. § 7 and 28 U.S.C. § 1738C) - and deciding whether that law is constitutional is most likely of more immediate concern.
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hobsen
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The Supreme Court has agreed to review the New York case on DOMA involving Edith Windsor, in which to a non-lawyer the issue seems to be that the appeals court approved a higher standard of scrutiny under which any differences in laws regarding gays and lesbians would be as suspect as any containing different provisions for different races, and also the status of California Proposition 8.
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hobsen
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The Supreme Court surprised me on this: I expected it would choose to review Windsor and Proposition 8, but I expected the announcement would come in January. Had I known more about Supreme Court procedures, I would have known that would have postponed argument on the cases until April, giving the justices a month less time to consider their opinions. Of course I am not sure that is why the announcement was made in December, but had I understood the procedure, I would have expected it would be.

In a similar manner, the pastern was mis-defined by Samuel Johnson in his dictionary as "the knee of a horse". When a lady asked Johnson how he came to do so, he replied: "Ignorance, madam, pure ignorance." Ignorance, alas, is rarely good.

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