Perry v. Schwarzenegger
Aug. 5th, 2010 08:10 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
stoutfellowJudge Vaughn Walker's ruling that California's Proposition 8 is unconstitutional will, of course, be appealed. Here's a little amateur tea-leaf reading on the fate of that appeal.
The first appeal goes to the 9th Circuit Court, which is responsible for most of the western US. (To be specific, it covers HI, AK, CA, OR, WA, NV, AZ, ID, MT, and the Pacific island territories.) The 9th Circuit is generally regarded as the most liberal of the Circuit Courts (and is the one most often overturned), so I'd expect them to uphold Walker's decision. An appeal to the Supreme Court is then inevitable.
So, what about the Supremes? The most closely related recent case is Lawrence v. Texas (2003), which declared state anti-sodomy laws unconstitutional. That decision was 6-3. Of those who voted with the majority, Justices O'Connor, Souter, and Stevens have retired. O'Connor was replaced by Samuel Alito, whom I presume would vote against approving Walker's decision. Souter's replacement is Sonia Sotomayor, and Stevens' will be Elena Kagan. (Kagan hasn't been confirmed yet, but the vote is today and enough Republicans have come out in her favor that the result is a foregone conclusion.) That makes things look like 5-4 to uphold Walker's decision, with Anthony Kennedy, as usual, as the swing vote. Kennedy wrote the majority decision in Lawrence (and in the even more closely related Romer v. Evans in 1996), and Judge Walker sprinkled his decision with many references to those two cases.
It'll take a while for the case to work its way up, but I predict another 5-4 decision, upholding Walker's ruling. Kennedy will, once again, probably write the majority opinion.
The first appeal goes to the 9th Circuit Court, which is responsible for most of the western US. (To be specific, it covers HI, AK, CA, OR, WA, NV, AZ, ID, MT, and the Pacific island territories.) The 9th Circuit is generally regarded as the most liberal of the Circuit Courts (and is the one most often overturned), so I'd expect them to uphold Walker's decision. An appeal to the Supreme Court is then inevitable.
So, what about the Supremes? The most closely related recent case is Lawrence v. Texas (2003), which declared state anti-sodomy laws unconstitutional. That decision was 6-3. Of those who voted with the majority, Justices O'Connor, Souter, and Stevens have retired. O'Connor was replaced by Samuel Alito, whom I presume would vote against approving Walker's decision. Souter's replacement is Sonia Sotomayor, and Stevens' will be Elena Kagan. (Kagan hasn't been confirmed yet, but the vote is today and enough Republicans have come out in her favor that the result is a foregone conclusion.) That makes things look like 5-4 to uphold Walker's decision, with Anthony Kennedy, as usual, as the swing vote. Kennedy wrote the majority decision in Lawrence (and in the even more closely related Romer v. Evans in 1996), and Judge Walker sprinkled his decision with many references to those two cases.
It'll take a while for the case to work its way up, but I predict another 5-4 decision, upholding Walker's ruling. Kennedy will, once again, probably write the majority opinion.
