Prop 8 oral arguments, Part II
posted by Kaimipono D. Wenger
(See here for Part I, background on the oral arguments.)
Today’s oral arguments were fascinating. A few thoughts:
Retroactive nullification looks dead. No one seemed to be buying Ken Starr’s semantic argument that it’s not really retroactive, and his stab at primary versus secondary retroactivity didn’t draw any takers either. In addition, Justice Kennard led the charge herself against retroactivity, with some very interesting hypotheticals about the Contracts Clause and the federal Due Process clause.
Also dead: Jerry Brown’s moonbeam argument about Article 1. Wow, that was a meltdown of epic proportions. Mr. Krueger looked extremely, painfully out of his depth. It seems to me that Brown’s involvement has not been helpful for gay-rights activists. His brief helped poke holes in their revision argument, and instead he offered a disastrously bad alternative. Wow.
Second most painful moment(s): Shannon Minter trying to explain how Prop 8 doesn’t affect anything outside of a narrow category, but it actually really does affect everything. Is it a big deal, or not? The justices skewered him on that, again and again, and he kept coming back to it. (The metaphor he was looking for, I wanted to yell out, is a sweater. Pull one thread, and the whole thing is affected. You _can_ have a little thing, that also affects the whole picture. But it’s counterintuitive, and it needs a good illustration.)
Ken Starr was the most polished oral advocate there, and it showed. (And not just because he followed right on Krueger’s heels).
Starr had great delivery. He seemed to notice that the justices were getting testy. He did not interrupt the justices (unlike just about everyone else) and was very deferential. In exchange, they let him talk, and he got lots of time to articulate his points. They gave him a lot of space, and mostly backed off and let him finish his sentences. As a result, his argument came out a lot more smoothly. (It helps that he has a great voice for argument — soothing but authoritative.) He talked slowly and carefully. This probably bespeaks lots and lots of preparation; Starr’s argument had almost no wasted motion, no wind-up time. (In contrast, Maroko wasted a big chunk of his rebuttal time with needless wind-up.)
Also, Starr knew how to take a hint. The justices had repeatedly tried to get other attorneys to discuss Raven. Starr obliged, with easily the best discussion placing his argument within existing case law. (His argument fits better, yes — but couldn’t the others have at least offered some sort of Raven/Frierson theory? It’s enough of a gray area that it’s possible to come up with ways to make it work. Only Stewart’s “first impression” argument came close to that, and it wasn’t all that satisfying. Can’t you say, “it _does_ fit Raven, because of X”?)
The other attorneys ranged from unresponsive to frustrating. Justice Kennard clearly tried to spoon-feed some objections on retroactivity here and there, and had trouble getting anyone to take the bait. Several of the justices tried to get the petitioners to invoke a theory — any theory — about how this case fit into the Raven / Frierson continuum. No one wanted to take them up on it. And Kennard tried to give Stewart some softballs on equal protection — had it perhaps changed over time? — which Stewart inexplicably failed to notice.
Starr was apparently taking notes about the justices’ frustration. When he said, right off the bat, “there are some very close analogs in existing case law,” I thought, that’s game over on the revision issue. That’s exactly what Justice Kennard (at least) was trying to get someone to say earlier.
The only caveat is that Starr’s view of the amendment power is breathtakingly broad. I was surprised that none of the others jumped on him about that, during rebuttal. The Justices (George, Kennard) pushed hard, and made Starr show his hand. And it’s an interesting hand:
1. Amendment, not revision (which I think Starr won, pretty handily, in this debate);
2. Retroactive nullification (by another name), accompanied by strong equitable remedies under the putative spouse doctrine (which he lost, but it was a longshot anyway);
3. An incredibly broad amendment power. Starr literally said that an anti-gay-adoption amendment would pass muster; a Romer amendment would pass muster; you can take away just about anything as long as it doesn’t structurally affect the Constitution. He repeatedly said that the people had the power to make unwise decisions. (I was waiting for someone smart on rebuttal to say that adopting Starr’s view on the breadth of amendment power would itself be an unwise decision.)
I thought it was surprising that no one jumped on Starr about that on rebuttal. (The justices themselves seemed pretty skeptical about it!) At that point, given the argument so far, I think it might have been best to jump on Starr’s overbroad suggested power (Romer is okay? no-adoption is okay? really?) and say, in effect, “you may think our argument is bad, but his outcome is even worse.”
Instead, advocates restated and defended their own positions, in ways that did not (with the partial exception of Stewart) seem particularly effective.