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.
Steve says:
But this makes it sound like the judge was a rogue who singlehandedly bent the rules. Surely Judge Walker did not force the Circuit Council to approve a pilot program. Did he even have the power to unilaterally amend the Local Rules? Steve(Quote)
Mark Field says:
This strikes me as assuming the conclusion. The necessary first step would be to establish that the FL court WAS doing that, and then intervene. A substantial part of the problem in Bush v. Gore, IMO, was the failure of the SCOTUS to make such a case. That failure made it appear to many of us that it was in fact the SCOTUS which was “intentionally fudging procedural rules to help one side in very high-profile litigation that implicates the political process.” Mark Field(Quote)
Kazinski says:
I think you are wrong here. Consider that the Florida Legislature promulgated laws for the Presidential election not based on powers derived from the Florida Constitution, but a direct grant of power from the U.S. Constitution:
The fact that the Florida State Supreme court was interpreting language in the Florida State Constitution and applying it to law that did not rely on the State Constitution is the rational for stepping in. Kazinski(Quote)
Orin Kerr says:
Kazinski,
That’s the argument to make if you have to make an argument. But if the case were Gore v. Bush, with all the politics reversed, I have a feeling the number of conservatives who found the opinion persuasive would be exactly zero. Orin Kerr(Quote)
wm13 says:
Interestingly, the appellant in Bouie was, in later years, an AME pastor here in New York City, and an acquaintance of mine. I believe he is now in Philadelphia.
But I’m surprised at the apparent suggestion that Prof. Kerr thinks that case is doctrinally sound. Despite my friendship with Rev. Bouie, and my sympathy for the civil rights movement, I firmly believe that if a group of (white) drunks had refused to leave a South Carolina bar at closing time, and been arrested and convicted for trespassing, (i) the South Carolina courts would have upheld the conviction, on the rather common judicial rationale “don’t be so clever and legalistic; everyone knows what the statute means” and (ii) the Supreme Court would not have found a due process violation. wm13(Quote)
ruuffles says:
Are you suggesting that Walker has an interest in seeing in the anti-prop 8 side win? The Florida SC was stacked with Democrats appointed by Lawton Chiles, thus one could plausibly make the argument that the Dems on the FSC were rooting for the Dem Al Gore. But what about Walker? He was not only appointed by H. W. Bush, but he was in some anti-gay ruckus before taking the bench:
Another question: why would Walker try so hard if he’s at the district court level and there’s another level of mandatory review (the FSC was the last word before SCOTUS)? I’m sure Reinhardt et al would take up the slack. ruuffles(Quote)
Henry says:
Walker is rumored to be homosexual by people who have worked for him.
What he did as lawyer is irrelevant. He took a case that he was assigned. Lawyers do that all the time. His bias on this case has been nothing short of breathtaking.
He wants to be famous. He wants to stick up for his side (if the rumors are true). He hopes to stack his opinions in the case as facts, thereby making appellate review more likely to tip toward his chosen side. Henry(Quote)
ruuffles says:
Thanks for the laugh. As the article points out, he could have stayed Prop 8, but didn’t.
I love the money quote
I am curious, do you also think Lindsey Graham, also a lifetime bachelor, is gay? Walker from appearances seems less gay than Graham. ruuffles(Quote)
Henry says:
Read the comments.
Do a Google search, Graham pings everyone’s gaydar. Henry(Quote)
ruuffles says:
How about SC’s Lt Gov? Gay or not gay? And of course, Souter’s gay, right? That’s why he moved into that brand new house, for all his gay orgies. ruuffles(Quote)
zuch says:
Prof. Kerr:
In order to help out disenfranchised voters, you mean. But whether they were “fudging” the law is arguable ... and up to them to decide in the manner in which they had agreed to decide such (such as § 102.168 “contests”).
Cheers, zuch(Quote)
zuch says:
No. They promulgated no different laws for presidential elections (at least in any manner of consequence here; IIRC, there’s an obscure provision that votes for the candidate are deemed to be votes for the electoral slate) than for their other elections. Do you claim that the corpus of Florida election law is all dependent only on Article II federal powers?
Cheers, zuch(Quote)
zuch says:
Five of the seven ScoFla justices were appointed by Republican governors.
Cheers, zuch(Quote)
Henry says:
Both examples are pretty much open secrets. Again, Google is your friend. Henry(Quote)
yankee says:
Well, when I search Google for Souter gay the first three hits I get are an old blog post speculating about a lesbian replacement for Souter, an article on Souter’s gay-rights jurisprudence, and a 2005 FreeRepublic post in which anonymous blog commenters speculate that Souter might be gay. What more proof do I need? yankee(Quote)
Martinned says:
OMG! Them gays’s everywhere! Martinned(Quote)
AGBates says:
To address the question raised in the first comment, it appears that the local rules “may be modified or amended by a majority vote of the active judges of the Court . . . .” N.D. Cal. Local Rule 83–1. I assume that is what happened in this case, but it is not clear from the Supreme Court’s opinion. The per curiam does a poor job of distinguishing between the District Court acting through Chief Judge Walker and the District Court acting by majority vote of the active judges. AGBates(Quote)
Andrew Siegel says:
When the 2000 Presidential election cases were pending, the Supreme Court–without notice or public debate–made an exception to an antiquated policy in order to make audio recordings of its arguments immediately available. The stated purpose of the order was to allow greater public access to the substance of proceedings of particular importance. Judge Walker’s order was very similar in both purpose and effect. It should have been uniformly embraced just like the high court’s order was in the 2000 election cases. The fact that it wasn’t speaks to the extraordinary lengths that the anti-same sex marriage folks are willing to go to in order to keep the public from watching a rational debate on the issue. Andrew Siegel(Quote)
Orin Kerr says:
Andrew,
Doesn’t your argument hinge on the purpose of Judge Walker’s order, which is a contested question? As I understand it, critics of Judge Walker claim that the real purpose of the order was to help the plaintiffs make their case to the public: Televising the case and letting the witnesses testify about their life stories could make this the Scopes trial of our day, changing public opinion on a matter of great public importance to further the side that Judge Walker favors as a policy matter. In contrast, I don’t think anyone has ever suggested a similar motive in the decision to release the audio of Bush v. Gore.
I should add, for what it’s worth, that I personally would have liked to see the video, and I also would prefer that court hearings like that be televised. Still, the comparison between that and the decision to release the audio of Bush v. Gore seems inapt to me. Orin Kerr(Quote)
Mark Field says:
As a similar example, the 9th Cir. oral argument in Washington v. Glucksberg was “broadcast” to other courtrooms because the one wasn’t big enough. Mark Field(Quote)
Kazinski says:
Zuch:
Your understanding of the issue seems to be lacking. It doesn’t matter whether they had different laws for presidential elections or other elections or not. What matters is that the State Supreme Court could not cite the State Constitution in fashioning a remedy for a perceived problem in the counting of the votes in a Presidential election. By doing so they were violating the US Constitution by ordering the election conducted in conflict with “such manner as the Legislature thereof may direct....”
In fact the Legislature would be free to flagrantly violate the Florida Constitution in conducting the election, if it did not violate the US constitution. For instance the Florida Legislature could decide that only voters under 65 were allowed to vote in Presidential elections, even if it specifically violated a clause in the Florida constitution providing that there was no upper age limit to voting. As long as no court found that it violated the US Constitution. And I don’t think Federal law could trump the Legislature either, only the US Constitution can. Kazinski(Quote)
zuch says:
How is my understanding of the issue lacking? To the extent that state law controls elections, it controls presidential elections. And that applies to all state law. Dispute that.
Huh?!?!? Do you think that Article II empowers state legislatures to act contrary to the state constitutions? Keep in mind that state legislatures are creatures of the state constitutions.... But no matter. As it was, the state legislature, in enacting § 102.168, had already directed the courts as to what they could do in fashioning remedies. Any lapse in such direction may be laid at the feet of the legislature, but doesn’t then give rise to some violation of the U.S. Constitution.
I’d note that the U.S. Supreme Court disagrees with your ‘theory’ as well.
For reasons I’ve stated above, you’re wrong.
As a ferinstance, let’s say they stated that the legislature can appoint a new governor of their own choosing on election day, with powers to do all kinds of things, including pick his nieces and nephews to be electors at egregious salaries, give million dollar handouts to political supporters that voted for them, and a bunch of other stuff (like maybe even amend any offending or even generally disagreeable state constitutional provisions by fiat or decree). And called it “presidential election law”. They say that all the other “incidentals” are necessary to the efficient process of picking the right electors. What result? You see the problem in your scheme?
But again, no matter. They didn’t. Because they aren’t that stupid (I would hope).
Cheers, zuch(Quote)
lgm says:
There’s a principle that judicial decisions should not only be sound, but also should seem sound. Call it Justice Theater, the black robe analogue of security theater. People need to have confidence in institutions.
The SCOTUS actions related to the Florida recount did more to erode confidence in the court than anything since Dred Scott. It wasn’t only, or even mainly, the final Bush vs Gore decision. The worst was halting the recount. lgm(Quote)
AF says:
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.
I’m really having trouble seeing the parallels, at least the one Orin is advocating. Leaving aside the question of whether the lower court had “picked a side,” the other suggested similarities — “manipulating procedural rules” and “a case with enormous political implications” — don’t strike me as particularly apt.
The Florida Supreme Court ruling at issue in Bush v. Gore didn’t concern a “procedural rule,” it concerned substantive election law. “This Court has repeatedly held, in accordance with the statutory law of this State, that so long as the voter’s intent may be discerned from the ballot, the vote constitutes a “legal vote” that should be counted.” It’s hard to see how an election law ruling could be more substantive than that — unless a court were simply to declare one party the victor, which the Florida Supreme Court did not do.
As for political implications, while both cases undeniably do have political implications, the nature of these implications strike me as more different than similar. Bush v. Gore had political implications in that it impacted the partisan election process. The Perry case has political implications because it involves a controversial issue of constitutional law. But many, if not most, controversial issues of constitutional law have major political implications. While gay marriage is a quite politically salient at the moment, it is not necessarily more so than issues such as late-term abortion, campaign finance, and affirmative action. It’s notable that a prominent Republican is representing plaintiffs and the defendant is quoting the Democratic president’s views.
That leaves the idea that the Supreme Court thinks the lower court judge has picked a side. Maybe so, but it’s very hard for me to countenance the idea that these decisions resulted from the Justices’ neutral belief that the litigants below were denied the right to an impartial decision-maker. Rather, the problem seems to be that the courts below picked a side and the Supreme Court picked the other side.
Incidentally, it may be that the side the Court is picking here is not anti-gay-marriage, but anti-cameras-in-the court room. AF(Quote)
Andrew Siegel says:
Orin–
What is the “contested question” about the purpose of Judge Walker’s order? Both supporters and critics of his move suggest that the purpose is to allow the public to see the testimony. And both sides are convinced that, if the public see the testimony, they will likely become more favorably disposed towards the plaintiffs. The critics are simply fishing around for some legal excuse to prevent the public from becoming informed.
By the way, I think the revisionism on the Scopes Trial is hilarious. Until the current controversy, the Scopes Trial was usually portrayed as demonstrating that our legal system works–by subjecting pernicious superstitution to the adversary process and deep public scrutiny, our society took a big step forward towards transcending ignorance and prejudice. That the mainstream media now talks about the Sopes trial so much more critically says something interesting about the growing cultural power of fringe rightwing groups hostile to basic Enlightenment values. Andrew Siegel(Quote)
egd says:
Of course, to someone who has a strong favor for one side, it would appear that the Supreme Court picked the “other side.”
The Supreme Court had to decide on the issue in one way or the other. But I would disagree that the Supreme Court chose a side. What the SCOTUS did was maintain the state of the rules prior to the extra legal actions of the judge in this case.
Although I do think that some inquiry needs to be made as to the motivations of the dissenting judges in this case. Was their dissent compelled by the theory that all trials should be broadcast, or was it because they think that judicial misconduct towards favored classes should be encouraged/allowed? egd(Quote)
Lymis says:
You really see those as the only possibilities? Talk about presuming the conclusion. Lymis(Quote)
Dilan Esper says:
This strikes me as assuming the conclusion. The necessary first step would be to establish that the FL court WAS doing that, and then intervene. A substantial part of the problem in Bush v. Gore, IMO, was the failure of the SCOTUS to make such a case.
I would put it a bit differently. The problem is that in a federalist system, the Supreme Court cannot be, is not, and should not be expert at issues of state law. They can have an opinion about it the same way that any educated lawyer, professor, or legal commentator can, but it’s not really their job and they aren’t privy to all the traditions, interpretative preferences, practices, etc., of state court and legal systems.
For this reason, it isn’t so much a matter of “was the Florida Supreme Court mucking around with Florida law” but rather “is the Supreme Court in a position to figure out whether what looks like mucking around with Florida law actually is mucking around with it”. And the answer to that question is “no”. The Supreme Court simply doesn’t know enough about how Florida election law works, how Florida courts traditionally interpret election statutes, etc. It isn’t their bailiwick.
As Professor Kerr points out, this case is different. I do think that the dissent has a persuasive argument that the supposed irreparable harm here is total BS– these witnesses aren’t rape victims who have a right to privacy, but partisans who took a public position on a contentious issue; if the plaintiffs had happened to sue in state court, the trial would have likely been televised. But it’s certainly well within the Supreme Court’s power and job duties to supervise the operation of the federal courts, and they are certainly in a position to have an understanding of how the District Courts should promulgate their rules. Dilan Esper(Quote)
Dilan Esper says:
The fact that the Florida State Supreme court was interpreting language in the Florida State Constitution and applying it to law that did not rely on the State Constitution is the rational for stepping in.
You know conservatives always cite this, but this was not the rationale of Bush v. Gore. Bush was decided on equal protection grounds.
(In any event, I happen to think that this argument is actually WAY off– for instance, if you took it seriously, a bill passed by the state legislature and vetoed by the Governor should count in determining what a state’s election law is.) Dilan Esper(Quote)
Dilan Esper says:
And one more thing– a request to the webmaster. Could we please delete all the comments that Judge Walker is gay and ban the commenters? Seriously, this borders on defamation, there’s no evidence for it, it’s a sleazy, McCarthyite style of argumentation even if it were true, and it has nothing to do with the case. This isn’t Free Republic.
(And yes, I don’t like liberals who traffic in rumors that Republican politicians are gay either.) Dilan Esper(Quote)
JAW says:
Bush v. Gore was a 7–2 decision, not 5–4, on the equal protection issue. It was 5–4 on whether the FL recount should be stopped immediately. But 7 justices agreed that the recount was being conducted in an unlawful manner. JAW(Quote)
Orin Kerr says:
Andrew Siegel writes:
In civil litigation over a high profile political question, it will normally be the plaintiff who brought the case, picked the forum, and shaped the complaint who wants it to be televised. Informing the public means informing the public of the case that the plaintiffs wanted to bring based on the complaint that the plaintiffs carefully drafted and the witnesses the plaintiffs chose. In that environment, it will always be the plaintiffs who want it televised and the defendants who don’t, right? So for example, in litigation over affirmative action, it will always be the plaintiffs trying to stop the affirmative action program who want it publicized and televised; it will always be the school defending the affirmative action program who want it not to be televised. I don’t think that really tells us much about the merits of the cases. Rather, I think it tells us that plaintiffs benefit from publicity in these cases rather than defendants. Given that plaintiffs pick the issues, the complaint, the timing, and the forum, it seems to me that a decision to televise or not isn’t just a neutral question, or a question of who is afraid of getting their views out.
I’m curious, how familiar are you with what actually happened in the Scopes trial? I strongly recommend to you the Pulitzer-prize winning book on what really happened in the case, Summer of the Gods, by law professor Edward Larson. I reviewed it in some detail here. I realize it’s fun to say that things that don’t appeal to you are “fringe rightwing,” but there’s actually a big gap between what happened and the widespread understanding. To the extent we’re replacing ideologically driven fabrications with actual facts and historical truth, I take that as an improvement. And I hope you do, too. Orin Kerr(Quote)
John Herbison says:
As to whether (falsely) labeling someone as gay is defamatory, I recall reading a few years ago (although I don’t recall where I read it–sorry) about a court ruling that, in the wake of Lawrence v. Texas, inaccurately accusing someone of being homosexual is no longer defamatory, in that the nexus between homosexal acts and criminality is no longer tenable.
I surmise that there is contrary authority, though I have not researched the question. That having been said, rank speculation about another’s sexual orientation is inappropriate, IMHO. John Herbison(Quote)
Dilan Esper says:
I was careful to say “borders on defamatory” for that very reason. Dilan Esper(Quote)
CMH says:
They did the same with some, maybe all, of the detainee/habeas cases. I vaguely recall reading an article within the last year or so about how the Supreme Court is often requested to make audio available immediately, and virtually never agrees, never giving any reasons why or why not.
The are substantial differences, to be sure, but this still smacks on some level of “good enough for thee, but not for me...” CMH(Quote)
Orin Kerr says:
I’m curious about other views on whether to delete the comments suggesting that Judge Walker might be gay. Initially I deleted the comments suggesting that Judge Walker might be gay on the theory that his sexuality is no one’s business but his own. (I don’t see it as defamatory, just no one else’s business.) But now I don’t know what to do with the comments: There are posts elsewhere debating the question, and now I’m not sure if it’s part of the debate on the case or not.
As to whether it’s “it’s a sleazy, McCarthyite style of argumentation,” I’m not so sure. It’s a claim of personal interest, and therefore of bias. Such claims are nearly universal in criticisms of the Supreme Court’s opinion here; the argument is that it’s “right wing” Justices trying to squelch public access because they don’t want people to see how gay marriage is a good idea. I don’t see those claims as very accurate, but I don’t delete them on the ground that they reflect sleazy McCarthyism; it’s just a claim of bias and self-interest, which is pretty common in claims about judicial decisions.
With that said, I’d be very interested in other reader reactions. If most readers think this should be out of bounds, I’ll delete the comments. Orin Kerr(Quote)
ptt says:
If the defendants hadn’t just spent $50,000,000 broadcasting their views, I could see a point there.... ptt(Quote)
ptt says:
Whereas accusing someone of throwing a case because of his or her sexuality is what? ptt(Quote)
Dilan Esper says:
prof. kerr:
the distinction with accusations that the supreme court is acting politically is that sexual orientation is more like race than political belief. it’s an aspect of someone’s identity, and people are arguing that walker can’t fairly judge this case simply because of who he purportedly is, not what he thinks.
in any event, when you combine that with the ‘outing’ aspect of the argument, it really isn’t any different than mccarthy arguing that seemingly dedicated public servants were secret communist agents. Dilan Esper(Quote)
ptt says:
I very strongly urge you to leave the comments as they are. In fact, I think you should restore the ones you already deleted.
Anti-gay animus drives at least some part of every discussion of gay rights. Hiding it just legitimizes its goals while hiding its nature.
If nothing else, if you do restore them, it might remind you why someone would call them “sleazy”. There are decent ways to raise issues of bias and there are ugly ways of doing so. The ugly ones should stand as well. If nothing else, they shed light on the commenter. ptt(Quote)
ShelbyC says:
It might be interesting to have a post on the relevance of whether or not a judge is gay in gay rights cases. ShelbyC(Quote)
Sandy MacHoots says:
The Supreme Court has a long history of examining state election laws and finding problems with them. They’re perfectly competent to figure out how Florida election law works. If the Supreme Court were to find that SCOFLA was manipulating the rules to disenfranchise poor blacks, nobody would argue that the Supreme Court wouldn’t know enough about Florida election law to have an opinion. Whether they should intervene is a seperate issue, but it’s not a question of competency. Sandy MacHoots(Quote)
Orin Kerr says:
Dilan,
To be candid, after the rather unhappy extended exchange we had just recently on this case, I don’t in any way credit your judgment on the issues related to this case. That’s why I have asked other commenters to weigh in. Orin Kerr(Quote)
Dilan Esper says:
The Supreme Court has a long history of examining state election laws and finding problems with them. They’re perfectly competent to figure out how Florida election law works. If the Supreme Court were to find that SCOFLA was manipulating the rules to disenfranchise poor blacks, nobody would argue that the Supreme Court wouldn’t know enough about Florida election law to have an opinion.
That’s not really right. The Supreme Court can certainly examine whether Florida law, as interpreted by the Florida Supreme Court, has the effect of disenfranchising blacks.
But in doing so, the US Supreme Court must take the Florida courts’ declaration as to the content of Florida law as binding. In other words, they can’t overturn a decision on the basis that the Florida courts manipulated Florida law, but only on the basis that the result of whatever they did violated a US constitutional provision.
The problem with presidential election decisions– and I will admit this goes back to MacPherson v. Blacker and didn’t start with the Bush / Gore dispute– is that they ignore this traditional restriction and instead let the federal courts come in and decide that the state courts really didn’t correctly interpret state law. And that’s a pretty big infringement on state sovereignty that isn’t allowed in other areas.
Further, as I noted, the interpretation of “state legislature” in the Constitution to allow this is really dumb– as I said, the governor is not the state legislature, so presumably vetoed laws should also count in determining the content of state election law. The more natural intrepretation of “state legislature” is to just refer to the state lawmaking process, which includes any judicial interpretations (which the state legislature is probably aware of when it decides how to act anyway). Dilan Esper(Quote)
Dilan Esper says:
To be candid, after the rather unhappy extended exchange we had just recently on this case, I don’t in any way credit your judgment on the issues related to this case. That’s why I have asked other commenters to weigh in.
Professor:
You are certainly not required to credit my judgment, and frankly, I didn’t ask you to (and think it’s a great idea to hear from other commenters).
I would hope, however, that you would evaluate my arguments instead of making this personal– after all, even a broken clock is right twice a day. Dilan Esper(Quote)
Orin Kerr says:
Dilan,
Your arguments struck me as extremely weak on the merits: I didn’t want to get into why because of the unhappy nature of our prior exchange. I asked for other views because I’m trying to get a sense of where most readers are: If others agree with your arguments, as weak as I think they are, I’m happy to defer to that majority view. Orin Kerr(Quote)
chiMaxx says:
As much as I would have liked to see video of this trial, I wish Walker hadn’t tried so hard to make this case the first. Had several other cases on contentious–but not quite so high-profile–cases already occurred, it wouldn’t be an open question whether it was the issue at trial or video itself that was motivating Walker’s push or SCOTUS’s blocking of the video.
Given the absence of actual video, one can only hope that the play or movie about this trial is written by dramatists as skilled as Lawrence and Lee. chiMaxx(Quote)
ShelbyC says:
To expand on my previous comment, a post on the generic gay judge/gay rights issue would allow exploration of the issues (which are interesting) without the rather ugly speculation into the judge’s personal life. ShelbyC(Quote)
Dilan Esper says:
Your arguments struck me as extremely weak on the merits: I didn’t want to get into why because of the unhappy nature of our prior exchange. I asked for other views because I’m trying to get a sense of where most readers are: If others agree with your arguments, as weak as I think they are, I’m happy to defer to that majority view.
That’s fine. Professor, look, again, as long as you are evaluating my arguments (even if you think they stink), I’m a happy commenter. Indeed, you do much more than most bloggers in terms of responding and interacting with commenters you disagree, and I commend you for that.
The only thing that bugged me was the implication in your last comment that you were looking at this issue in terms of “Dilan Esper says it, therefore it isn’t entitled to any weight”. But if I drew that inference erroneously, I apologize. Dilan Esper(Quote)
Orin Kerr says:
Dilan Esper,
Can we take this off line? I would like to continue this, but I don’t see why we need to have this exchange in public. Orin Kerr(Quote)
chiMaxx says:
ShelbyC:
I fail to see the point. Those who are predisposed to think a judge would bias his views or who think there are no legitimate grounds for any gay rights case to win will say that of course a gay judge will thumb the scales of justice. Those on the other side will say of course not. It’s like “Of course she always sides with the wife in divorce cases.” and “Of course he dismissed that case against the priest; he’s Catholic.”
Discussing the issue will raise the temperature but not the illumination. chiMaxx(Quote)
Mark Field says:
The claim of bias on the ground that the judge is gay doesn’t seem very persuasive to me. After all, if he’s straight he might well be biased in the opposite direction. This is similar to situations in which gender bias is in dispute: the judge must be male or female, no other option is available.
That’s distinguishable, I think, from claims of bias due to ideology, which is a spectrum on which it’s at least theoretically possible to find someone in the middle.
All this is distinct from the real standard for judicial bias, which requires something more than the alleged characteristics of the judge. Mark Field(Quote)
Dilan Esper says:
Can we take this off line? I would like to continue this, but I don’t see why we need to have this exchange in public.
No problem. Shoot me an e-mail any time you like. (I guess that’s still technically “online” though. :) I know what you meant.) Dilan Esper(Quote)
Kazinski says:
Dilan:
Yes and no. I think if the legislature passes a bill directing the apparatus of the state, and allocates money for the purpose of the Presidential election, then of course the Governors veto would be valid. After all state workers are for the most part under the executive. If the Legislature votes to assign the electors to a candidate, or comes up with procedures that do not require use of state workers or state money, then the veto would have no effect. Kazinski(Quote)
Andrew Siegel says:
Oren–
In response to your last post, I skimmed Larson’s book (which was on my shelf but had never made the top of my reading list) and read a few of the other new articles on the Scopes Trial and now rescind my earlier comment as something of a cheap shot–the actual story of the Scopes trial seems a lot more complicated than Mencken and Inherit the Wind made it sound.
Like others above, however, I remain unconvinced (1) that it will always be plaintiffs who prefer greater publicity (there are lots of reasons a plaintiff would shy away from public scrutiny including embarrassing facts, fear of reprisal, concern about the weakness of his or her case)and (2) even if that were true, that such a fact would be an argument against televising proceedings (it seems to me that the onus should be on the party seeking to deny the public access to a neutral and accurate record of a public proceeding). Andrew Siegel(Quote)
Dilan Esper says:
Yes and no. I think if the legislature passes a bill directing the apparatus of the state, and allocates money for the purpose of the Presidential election, then of course the Governors veto would be valid. After all state workers are for the most part under the executive. If the Legislature votes to assign the electors to a candidate, or comes up with procedures that do not require use of state workers or state money, then the veto would have no effect.
The problem is that draws a nonsensical distinction.
Simply put, states have processes where something becomes “law” just as the federal government does. Those processes involve the legislature, but do not only involve the legislature– they also involve the executive branch, administrative agencies, courts, the people through the initiative process, state constitutions, etc.
Without any evidence to support it, I don’t see the justification for the Supreme Court’s conclusion that the word “legislature” in the election clause constitutes a bypass of all those legal procedures giving the legislature direct and absolute power over the electoral process. Of course, I don’t think the Supreme Court really believes that, even though it said it. But if it doesn’t believe that, what’s the warrant for saying that the governor’s action matters but a court’s action doesn’t? And what’s the warrant for saying that the state courts which have the final say on the meaning of state law in every other circumstance won’t have that final say here?
In other words, I think the only REASONABLE reading of “legislature” in that context is to repose in the state lawmaking process (as opposed to the Congress) the power and duty to set election rules. How a state wants to distribute that power and what checks it wishes to put on it is up to the state.
But I admit, the Supreme Court has not adopted this interpretation– and for all my problems with Bush v. Gore, this goes back to MacPherson and is certainly NOT the fault of the conservative majority on the Court in 2000. Dilan Esper(Quote)
ShelbyC says:
Especially since a state legislature is a creature of the state’s constitution, you’d think that a legislature can only act as such to the extent that the constitution allows. But wasn’t there a question as to the extent that the court was using principals like equity to craft a remedy outside of state statutory law? That strikes me as stretching a little far. ShelbyC(Quote)
Dilan Esper says:
Especially since a state legislature is a creature of the state’s constitution, you’d think that a legislature can only act as such to the extent that the constitution allows. But wasn’t there a question as to the extent that the court was using principals like equity to craft a remedy outside of state statutory law? That strikes me as stretching a little far.
But if that’s the way things are normally done in that state, why not?
Let’s suppose, for instance, that a state has a long tradition of providing that electoral challenge time limits are discretionary and may be waived on a showing of good cause. (I’m not saying this was the case in Florida– I’m just positing it for purpose of argument.) The state, which could write the good cause standard into the statute, doesn’t. But every electoral deadline case that has ever gone up has applied the good cause standard.
So now, Bush v. Gore comes up, and one of Bush’s arguments is the challenge is untimely. The Court, applying its established rule of construction, finds the time limit discretioanry and remands for a showing that Gore established good cause for the delay.
As I read MacPherson and Bush v. Palm Beach County Elections Board, that’s not permissible because the rule didn’t come from the legislature. But the problem is, what if the reason the legislature didn’t bother to put the good cause standard in the statute is because it is always read into every elections statute by the Court?
It seems to me to be much better to say that the “legislature” means the state lawmaking process, with the Supreme Court accepting the determination of the state courts as to the meaning of state law.
That said, I think Professor Kerr hits the nail on the head as to why the Supreme Court DID NOT do that in Bush v. Gore– they thought the Florida courts were mucking around with the law to get the outcome they wanted. (Unfortunately, the US Supreme Court remedied that by... ahem... mucking around with the law to get the outcome they wanted.) Dilan Esper(Quote)
De Minimis Matt says:
Mr. Kerr,
Why are we even looking into the subjective intent of the individual judicial officer? Isn’t the objective reasonableness of the order (or lack thereof) the only relevant question? De Minimis Matt(Quote)
hattio says:
Professor Kerr,
On the question of leaving the posts, I think you should. I don’t think whether or not the judge is gay should have anything to do with his decision, but obviously people will wonder. I think it also shows up the extent to which one side is willing to go (I’m not saying the other side holds back any more, there’s radical crazies on both sides of the debate). Finally, I agree that considering calling someone gay a grievous insult unfortunately re-inforces the belief that there is something wrong with being gay. hattio(Quote)
Orin Kerr says:
Why are we even looking into the subjective intent of the individual judicial officer? Isn’t the objective reasonableness of the order (or lack thereof) the only relevant question?
Is it? Orin Kerr(Quote)
Corpus Juris Vol. IV » First Thoughts | A First Things Blog says:
Lymis says:
As stated that is true, but there’s more to it, especially in the light of this particular case. A huge part of the underlying issue in this case is the examination of the degree to which the mere perception of being gay affects the way someone is treated by society, that those who are seen or known to be gay are seen as dangerous, subversive, deviant, and unwelcome in the social structure other citizens participate in.
Even if you agree that there is nothing wrong with being gay, it is not unreasonable or inappropriate to object that someone bringing the subject up is doing it specifically to devalue or attack someone, especially when the context makes it clear that they see it as an negative thing. Lymis(Quote)
Ted says:
If one purpose of this forum is to encourage meaningful and entertaining discourse on the topics posted, you should adopt a liberal policy as to what commenters post. If the post is related to the topic of discussion, even tangentially, it should stand, however distasteful, inarticulate, or unreasonable. Only if the post is completely irrelevant to the topic, or so completely lacks a factual basis as to be useless or unbelievable, should it be censored. I realize this is a pretty low standard, but probably necessary to get a comprehensive view on a topic among non-experts.
As for the specific posts at issue, they suggest that Judge Walker’s sexual orientation influenced his decision. That position is at least tangentially related to the topic. If that position is considered wrong, a swift and severe response with supporting facts is the appropriate redress, not censorship.
Shouldn’t it be? Ted(Quote)
Christopher Cooke says:
Professor Kerr:
I am not sure I buy your analogy.
I think SCOTUS would have intervened in Bush v Gore, regardless, because SCOTUS didn’t want the Florida Supreme Court deciding a Presidential election, regardless of federalism concerns. That is essentially what Kennedy and Scalia said about the decision later.
Here, it may be that the SCOTUS majority thought that Chief Judge Walker didn’t follow the court’s local rules and the proper procedure for amending them. I am not sure I agree with the conclusion, but a reasonable argument can be made that Judge Walker did so (I don’t think a reasonable argument supports Bush v. Gore majority, only a non-frivolous one).
For those who don’t know Judge Walker, he is a very independent-minded judge. I have appeared before him a few times, and respect his intellect. I think he will be hard to predict on this case.
As for his sexual orientation, I think it has no more and no less relevance than many other personal characteristics, such as gender, religion and ethnicity. Should people move to disqualify Roberts, Kennedy, Scalia and other Catholic justices because of the Roman Catholic church’s support for Prop. 8? Accuse them of bias? I guess people make that claim, but I would hope that justices try to put those matters aside when ruling. By the way, I have no idea whether Judge Walker is gay; I do know that the “Gay” Olympics case almost prevented him from being appointed to the District Court in 1989/90, when he was nominated by Bush 41.
Given that history, it would be somewhat ironic now if Judge Walker winds up striking down Prop. 8. Christopher Cooke(Quote)
Mark Field says:
While I generally agree with this attitude, this particular situation is one where I don’t. The reason is that an accusation that someone is biased because he’s gay doesn’t get anywhere. Exactly the same accusation could be made against someone who’s straight. This means the whole universe of potential judges is “suspect”, yet somebody must hear the case. In situations like this, the claim is irrelevant to any conceivable argument. Mark Field(Quote)
Chris Travers says:
That line however, is inherently problematic in borderline cases. However, when we had a manual recount in Washington State a few years ago, what they did was have representatives for the races count and check eachothers’ work. In other word, a Democratic representative would count a stack of ballots and hand them to a Republican representative or vice versa. If there were disagreements about specific ballots, those could be handled separately.
We had much more credibility in that process, even though the margin was TINY than Florida did.
I wonder if Florida has other ballot counting problems though. There seem to be real problems with the optical scan machines and these problems seem to span vendors. While I have heard generational arguments for the anomilies found, when combined with evidence of other problems, I am not at all sure that is the end of it. Chris Travers(Quote)
Chris Travers says:
“Regardless of how the people vote, all electors shall vote for the candidate of the Democratic Party” would not be subject to the governor’s veto? Chris Travers(Quote)
Jamie Ward says:
Court proceedings are public. Many State Supreme Courts have video of court proceedings. There was a Jumbotron a few blocks from Justice Walker’s courtroom during the state challenge to Proposition 8 only a few months ago. Neither side objected to those being televised and made available on the internet.
Seriously, there is no need to video of most trials unless it is a high profile case that many people will be interested in watching. Of course the rules were changed for this case, in a ‘reasonable’ amount of time. Video can not be said to benefit one side or the other, it would have enabled the citizens to understand the process. Jamie Ward(Quote)
SCOTUSblog » Thursday round-up says: