A reader of my blog posting on Tuesday's 9th Circuit decision in Perry v. Brown, the California Proposition 8 case, asked me to clarify what I meant when I said there is no appeal "as of right" from this decision, so I've decided to post my ruminations about whether this case is going further.
This case is over unless either a majority of the judges on the full 9th Circuit Court of Appeals votes to grant a petition for rehearing "en banc" (which in the 9th Circuit's practice would involve the chief judge and ten other judges drawn at random from the list of active [not retired "senior status"] judges of the Circuit) and/or unless at least four Justices of the United States Supreme Court vote to grant a petition for writ of certiorari. The first question now confronted by the losing party in Tuesday's decision, the Proponents of Proposition 8, is whether to file a petition for rehearing en banc, or whether to file a petition for writ of certiorari. They do not have to seek rehearing before seeking Supreme Court appeal, but petitioning the Supreme Court would cut off their opportunity to seek en banc review.
If they want to prolong the agony of delaying implementation of District Judge Walker's injunction against the enforcement of the constitutional amendment created by Prop 8, they would first file for en banc rehearing, which would delay a final decision at the court of appeals level for a substantial period of time if the petition for rehearing is granted, since the grant of such a petition would vacate the panel decision and, most likely, keep the stay in effect while new briefs are filed and a new hearing is scheduled by the 11-judge panel, which then would take some time to render its decision.
This route probably makes more sense for Proponents as a litigation strategy as well, since by-passing the en banc petition stage gives up one bite at the apple when they theoretically have up to two bites left. If they can get the panel decision supplanted by an en banc decision in their favor, they don't need to seek Supreme Court review, and the question whether to seek such review would go to the Plaintiffs-Appellees, the challengers of Prop 8. We know that the Plaintiffs would file such a petition, since their avowed aim in filing starting this lawsuit was to obtain a U.S. Supreme Court ruling holding that same-sex couples have a constitutional right to marry. That's the question as to which the 9th Circuit panel abstained this week, deciding on the narrower ground that once a constitutional right is granted, it may not be revoked except for some rational justification, which the court found lacking in this case.
What might happen in an en banc panel, which would include the three judges from the panel that issued the decision on Tuesday? Without knowing who else would be on the en banc panel, it is difficult to predict. The 9th Circuit has a reputation as a liberal circuit, but Presidents Reagan and George W Bush got to appoint nine judges who are active members of the Circuit. Presidents Carter, Clinton and Obama appointed the other sixteen who are now sitting. There are four authorized seats now vacant, an example of the slowness of President Obama to appoint new circuit judges and the reluctance of Senate Republicans to agree to bring their nominations to a vote. (Since Republicans hold more than 40 seats in the Senate, under current Senate rules by which the minority can file a motion requiring 60 votes to bring a measure to the floor, they can effectively block a vote on any nomination they target for defeat.) This means the overall balance of the Circuit is more liberal than most circuits, and a random draw would probably result in an 11 judge bench with Democratic nominees outnumbering Republican nominees, since almost 2/3 of the judges on the Circuit are Democratic nominees. (In that sense, the 3-judge panel that decided this case, which was randoming composed, is politically representative of the circuit, with the resulting, somewhat predictable, 2-1 vote.)
Some of the Democratic appointees are not so liberal, and some of the Republican appointees have emerged on the bench as more libertarian on gay rights than might have been anticipated when they were appointed. For example, Chief Judge Alex Kozinski, appointed by Reagan, is unpredictable on gay rights cases, but he did write a strong decision (albeit in his role as an internal 9th Circuit grievance-decider rather than in an opinion for the circuit court) holding that a lawyer employed by the Circuit in a staff position who married her same-sex partner in California in 2008 was entitled to enroll her spouse in the federal employee benefits program, despite the federal Defense of Marriage Act. (That ruling is now playing out in subsequent litigation by the employee against the federal Office of Personnel Management, in a case pending in US District Court, because OPM refused to comply with Judge Kozinski's order.)
Proponents might look at this overall 9th Circuit line-up and decide that they don't have a great shot at winning a reversal. They may seem to get an advantage if they are the party that applies for certiorari to the Supreme Court, because they then get first shot at framing the questions presented to that Court in their petition. (Of course, if it decides to grant certiorari, the Court is free to rewrite the questions on which review is granted…) If they win a reversal en banc in the 9th Circuit, they know that Plaintiffs will file a certiorari petition, and get the first shot at framing the question to the Supreme Court. If getting the case to the Supreme Court is a high priority for both sides, petition for en banc rehearing makes little sense for Proponents. Another thing to bear in mind is that the 9th Circuit is generally reversed by the Supreme Court more often than the other circuits, reflecting the different "political" balance of the appointments.
What might happen at the Supreme Court? There's already lots of speculation out there, so the first thing to say is that the Supreme Court has yet to decide any case about same-sex marriage, even though Justice Scalia charged, in his dissent in Lawrence v. Texas (2003), that the reasoning of the majority opinion by Justice Kennedy opened the way for same-sex marriage. In that dissent, Scalia reasoned that the only real justification for excluding same-sex couples from marriage — taking the Court's ruling that sodomy laws were unconstitutional into account — was a legislative judgment that such relationships are immoral, and that the Court's Lawrence opinion seemed to eliminate moral judgments as a basis for making laws. Scalia, as usual, was overstating his case for dramatic effect. Subsequent lower federal court rulings have generally given a narrower reading to Lawrence, particularly noting that it had to do with the validity of a criminal statute, and that Justice Kennedy had himself apparently narrowed the scope of the holding by mentioning various issues that the court was not deciding. In particular, Justice Kennedy made clear that the Court was addressing only the constitutionality of the sodomy law, and not whether states are required to extend legal recognition to same-sex relationships.
Since Lawrence was decided, four Justices have retired and four have been appointed and confirmed. Two were appointed by President Bush (Roberts and Alito) and two by President Obama (Sotomayor and Kagan). Most Supreme Court watchers generally see all four as being more conservative than the Justices they were replacing – chronologically, Rehnquist, O'Connor, Souter, and Stevens. So the Court as a whole is seen as being perhaps a bit further to the right than it was at the time Lawrence was decided. But overall, the four Democratic appointees on the Court – Ginsberg, Breyer, Sotomayor and Kagan – are seen as moderate-left, while four of the Republican appointees – Roberts, Scalia, Thomas, Alito – are seen as relatively hard-right. Kennedy, the author of Lawrence (and of Romer v. Evans, the opinion on which the 9th Circuit panel majority relied for its reasoning), is somewhere in the middle, generally (but not always) the "swing vote" in close cases, more of an economic conservative and on social issues, sometimes more of a libertarian (although his votes in discrimination and affirmative action cases have been more in the conservative direction much of the time, except, of course, for Romer v. Evans!). Some press reports indicate that Kennedy knows and is friendly with gay people — he has taught, for example, as an adjunct lecturer at McGeorge Law School in his hometown of Sacramento, and there are openly gay faculty members there — and that this has affected his openness to gay rights arguments. While on the 9th Circuit prior to his appointment to the Supreme Court, he raised doubts in one opinion about the constitutionality of the policy then followed by the military of discharging gay members. But where this turns out on Proposition 8 — who can say?
Four votes are necessary to grant certiorari. The four Justices to the right, presuming they would be disposed to overrule the 9th Circuit, would be unlikely to vote for Proponents' petition for certiorari (on a theory of strategic cert voting) if they thought Kennedy was likely to vote to affirm. The four Justices to the center-left, presuming they would be disposed to affirm the 9th Circuit panel opinion, would be unlikely to vote for a petition for certiorari from Proponents if they thought Kennedy was likely to vote to reverse. But Kennedy is unlikely to signal any predisposition in this case, and there is lively speculation about whether Kennedy would see the 9th Circuit opinion as an appropriate application of his ruling in Romer or whether he would see a need re-examine Romer in light of the California facts of the Prop 8 case. Because judges are not supposed to announce a position on a case before it is briefed and argued, and in their function as judges they should reserve forming a conclusion before they have read the briefs and heard the arguments of the parties and discussed the matter in conference, nobody will know for certain where they stand. Confident predictions about how the Court will decide a case or how individual Justices will vote are sometimes proved wrong.
For example, although he wrote the decision in Romer, striking down Colorado's anti-gay Amendment 2, Justice Kennedy voted with the majority in Boy Scouts of America v. Dale, signing on to Chief Justice Rehnquist's opinion holding that the Boy Scouts had a First Amendment right to exclude gay men as Scout leaders. And despite some predictions, not one member of the Court voted to affirm the Massachusetts Supreme Judicial Court's ruling that a gay Irish group was entitled to march as a unit in the Boston St. Patrick's Day Parade. So predicting is an awkward business.
I continue to believe that because of the narrow basis on which the 9th Circuit ruled, there is a good chance that the Court would deny a cert petition filed by the Proponents. I haven't really thought much yet about whether the Court would be likely to grant a cert petition filed by the Plaintiffs, if the 9th Circuit grants en banc rehearing and rules for the Proponents. One step at a time….