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The Prop 8 Perry Case Schedule: Cloud, and Silver Lining

February 17, 2011

via Pam’s House Blend, which is my regular source for Prop 8 and much other GLBT issue news, comes a report that the California Supreme Court has taken up the certified question on standing.  If you have no idea what that means but you wish you did, this post was designed to catch you up.

The timeline is long.  They will hear it in September and decide probably in December, but that’s only the question of standing.  If the proposition proponents have no standing the Ninth Circuit will toss the thing within a few months, I expect.  If the proponents do have standing, the Circuit will (my prediction, worth what you paid for it) uphold Judge Walker’s decision on the merits.  They might take longer to do that.  I’m thinking the Ninth Circuit will decide in the first half of 2012.  Then, we all know, the Supremes will take it.

Here’s the silver lining:  right now, I believe that eight of the nine votes on the Supreme Court are locked in.  The Four Horsemen are locks for denying equality, and Breyer and the three women, I’m pretty confident, are for equality.  That leaves Kennedy, whose history of being for LGBT folks and concern for his place in history make him likely but not certain to continue to cut against his otherwise conservative jurisprudence and do the right thing.

But if there’s a vacancy among the Four Horsemen, and Obama fills it, it is very, very, very likely that it changes the vote.  Scalia isn’t young, and Thomas isn’t happy, and either could retire.  I’ll go one step further, and say that if there is a five-vote majority for equality and he’s not the swing, there is then virtually zero chance that Kennedy will elect to go down on the wrong side of history, and it will be 6-3.  If Obama gets to replace one of the Four Horsemen, I’d bet money at even odds on 6-3.

“Time is on our side” is a bitter pill to swallow.  But, yes it is.

3 Comments leave one →
  1. March 2, 2011 8:34 am

    Yes but you look at it from only one side – several of the left members of the court (Ginsberg) or not young or well and could also retire . And if Obama isn’t reelected in 2012 that could leave a conservative President to fill a liberal seat on the court

    • March 2, 2011 8:40 am

      Only Ginsberg is old enough that health is a concern, and she’s looked good lately, and she would never quit under a conservative POTUS. Breyer is hale and hearty and Kagan and Sotomayor are younger and recent appointees. I don’t see a shift to the right as likely.

    • Katelyn permalink
      March 4, 2011 12:09 pm

      Ginsberg wouldn’t dream of retiring soon. She’s literally overjoyed to finally have two other women to work with on the Court. I doubt she’ll pull a Rehnquist and stay on even when she’s falling-apart and dying (seeing as she’s not crazy), but I think she’ll be sticking around a long time.

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