Legal Commentary

A Leading Judicial Indicator?

By Dale Carpenter

While the Supreme Court?s per curiam opinion today deals with legal matters apart from SSM, it is a potentially ominous development for the pro-SSM litigants. The majority here ? split along familiar ideological lines, with Justice Kennedy joining (and Orin suggests, writing for) the majority ? paints a picture of a district judge and to some extent an appellate court acting hastily and lawlessly to make special rules to favor one side in a single case.  

That may or may not be what the district court did, but that?s what five Justices have concluded.  As an advocate, you?d rather not have the ultimate reviewing court call into question your judge?s objectivity on the third day of trial.

The Court also takes seriously the claims of irreparable harm to anti-SSM witnesses based on criticisms and retaliatory action some claim to have faced after Prop 8 passed. As an advocate, you?d rather not have the ultimate reviewing court see the opposition as David needing protection from your Goliath.

All in all, it?s a bad start for the judicial challenge to Prop 8.

Full post as published by The Volokh Conspiracy on January 13, 2010 (boomark / email).