Legal Commentary

Hollingsworth v. Perry, Bush v. Gore, and Manipulating Procedural Rules in High-Profile Litigation Impacting the Political Process

By Orin Kerr

Today?s 5?4 decision staying Judge Walker?s order to allow the broadcast of the California same-sex marriage case reminds me of a case that will be extremely familiar to the respondent?s lawyers, Ted Olson and David Boies. I think it reflects the same basic idea, albeit in a much more persuasive doctrinal context, that was motivating the majority Justices in Bush v. Gore. I wanted to offer a few thoughts about why I see the two cases as somewhat related.

I think the judicial instinct at play here is the objection of U.S. Supreme Court Justices when they see lower court or state court judges intentionally fudging procedural rules to help one side in very high-profile litigation that implicates the political process. In Bush v. Gore, the Florida Supreme Court was repeatedly fudging state election law to try to help out Al Gore in the 2000 election. In this case, Judge Walker was fudging the rules on broadcasting trials to try to give the plaintiffs a national forum to make the case for gay marriage. In both cases, the decisions left the strong impression that the judges below had picked a side: They were manipulating procedural rules to do what they could to help out the side they wanted to win in a case with enormous political implications.

In both cases, the Supreme Court reacted the same way: It stepped in to stop the lower court or state court from manipulating the rules. In both cases, the Court led the way with a per curiam opinion 5?4 decision stopping the lower court decision. (And if I had to guess, I would guess that both per curiam opinions had the same author, Justice Kennedy.)

Or course, whether the two opinions are persuasive is a different matter, and each case needs to be analyzed separately. As I have written before, I found Bush v. Gore manifestly unpersuasive. There is certainly precedent for the Supreme Court stopping state court judges from fudging state court rules where there are important federal interests in play, see, e.g., Justice Brennan?s opinion in Bouie v. South Carolina, 378 U.S. 347 (1964). But I thought that the judicial instinct to stop lower court manipulation of the rules in Bush v. Gore was an instinct looking for, but not finding, a doctrinal home. Today?s decision was on much more substantial footing, I think, as the issue was a federal procedural rule that is part of the judiciary?s inherent supervisory power. While it was unusual for the Court to choose to step in, presumably that?s something that the Supreme Court has the power to decide if it wishes.

But whether the decision was persuasive is a separate matter; my interest in this post is just pointing out the similarities. It must be an odd deja vu moment for David Boies and Ted Olson, the respondent?s lawyers today and opposing counsel for Bush v. Gore back in 2000.

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