No One Actually Knows if the Supreme Court Will Hear the Prop. 8 Case

It seemed in the heady aftermath of Tuesday's ruling from the 9th Circuit Court of Appeals that a Supreme Court case on Proposition 8 was inevitable, but a few news reports have since pointed out that the Supreme Court might decline to hear the appeal on California's law banning gay marriage.

It seemed in the heady aftermath of Tuesday's ruling from the 9th Circuit Court of Appeals that a Supreme Court case on Proposition 8 was inevitable, but a few news reports have since pointed out that the Supreme Court might decline to hear the appeal on California's law banning gay marriage. The Los Angeles Times lays out the basic argument for caution:

"The opinion holds that Prop. 8 was unconstitutional only in a case where the state had already granted full legal rights to same-sex couples," said University of Minnesota law school professor Dale Carpenter.

The decision "is specifically looking at the role of Proposition 8 in the California context," said Santa Clara University law professor Margaret M. Russell. Because it is limited to California, the Supreme Court may not be as concerned about reviewing it as it would a ruling that would have affected the entire country, she said.

That was an important point to make in a climate that had Mitt Romney issuing a statement asserting, "This decision does not end this fight, and I expect it to go to the Supreme Court," and news reports that opened with, "Same-sex marriage continued its march to the Supreme Court on Tuesday..." Outlets from Talking Points Memo to The Atlantic followed up on the Los Angeles Times story with similar ones that also quoted cautionary legal scholars. 

But reading through them, the frame of "We don't actually know whether they'll hear the case," can begin to sound a lot like "They probably won't hear the case." (The Times' headline, "U.S. Supreme Court may not hear Prop. 8 appeal," could just as truthfully read, "U.S. Supreme Court may hear the Prop. 8 appeal," or "Unclear If U.S. Supreme Court Will Hear Prop. 8 Appeal.") In the Talking Points Memo story, almost all the legal scholars consulted are careful to note that it's hard to say what the court will do, but the article gives much more space to pointing out reasons they might not hear it than to reasons they might.

But careful reading reminds us that there's also good evidence to suggest the Supreme Court will hear the case. After making the familiar "narrow ruling" point to suggest the Court might not hear the case, Professor Jane Schacter at Stanford Law School tells TPM that "On the other hand, because this case is very high-profile and California is an influential state that 'tends to set trends,' the Supreme Court 'may decide to take it.'"

Similarly, the two lawyers who argued against Prop. 8 seemed split on the likelihood of the Supreme Court taking the case. David Boies told reporters, "I think the grounds do make it somewhat less likely that the Supreme Court will take it," according to MetroWeekly, a D.C.-based gay publication. But Boies's co-counsel Ted Olson said, in the words of TPM, "the Court might not be able to resist, especially since parts of the opinion can be more broadly applied."

Prop. 8 supporters have 14 days to decide whether to have a larger panel of 9th Circuit judges rehear the case and they have 90 days to appeal it to the Supreme Court. Four Supreme Court justices would have to agree to hear it. Either way, it's unlikely they'd do so before 2013.