Legal News

Are Boies and Olson Doomed? Another Look at the ?Cameras? Ruling

By Ashby Jones

We wondered aloud last week if the U.S. Supreme Court’s 5-4 ruling barring San Francisco federal judge Vaughn Walker from televising the Prop. 8 trial could be viewed as a sort of harbinger, a hint as to how the court might vote on the substantive issues underpinning the trial itself.

The LA Times’s David Savage, it seems, had the same thought. And in an article from Sunday, he spun it into an article. “Some experts,” wrote Savage, are seeing the 5-4 vote as a “bad omen for those who hope gays and lesbians will win a constitutional right” to marry each other.

Savage writes that legal experts on both sides of the political aisle gleaned three insights from the high court intervention:

First, the justices are following this case closely. They typically rule on appeals after cases are decided. It is rare for them to intervene in a pending trial.

Second, the court’s conservatives do not trust Walker to set fair rules for proceedings. Their opinion described how he had given shifting explanations of his plans. This suggests Walker’s ruling on Proposition 8 may be viewed with some skepticism.

And third, the majority has a distinct sympathy for the foes of same-sex marriage. The justices cited a series of newspaper stories reporting on the threats and harassment faced by those who have publicly opposed gay unions.

And what to make of the 5-4 ruling, which turned on ideological lines, with Justice Kennedy, often the swing vote among the two blocs, siding with the conservatives?

“The ideological split was stunning,” said Erwin Chemerinsky, the dean of the law school at UC Irvine. “It made me think of Bush vs. Gore.”

And that, if true, isn’t good news for all those who’d like to see Prop. 8 shot down. Last week’s intervention in the San Francisco case “suggests the majority has a very strong sympathy for Prop. 8’s supporters,” USC law professor David Cruz added.

At the same time, perhaps not surprisingly, plaintiffs’ lawyers Ted Olson and David Boies were downplaying the significance of the ruling: This was “a split based on cameras in the court,” said Boies.

Full post as published by Law Blog - WSJ.com on January 19, 2010 (boomark / email).