So Much for the Brilliant Ninth Circuit Opinion

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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16 Responses

  1. mls says:

    Justice Kennedy wasn’t impressed by the “How to Register a Domestic Partnership with a Millionaire” argument? Hard to believe.

  2. Sparkle Motion says:

    My word, Gerard. What a lazy fit of trolling.

    Is there a point to this post? Does this pass as insight or clever snark in your world? Do you enjoy arguing with strawmen?

    Never thought I’d *prefer* the posts where you ask your readers to serve as your research assistants, but wow.

  3. Joe says:

    You mean the guy who dissented in the PPACA case? You didn’t seem to accept his view of things there.

  4. Gerard Magliocca says:

    Well, after the panel opinion came out many folks said how it was great because it would convince Justice Kennedy. It didn’t.

  5. AF says:

    Well, its reasoning may not convince Justice Kennedy, but its result may prevail. According to reports Justice Kennedy wants to dismiss the case, leaving the Ninth Circuit’s ruling intact. Query whether he would have been willing to do that if the Ninth Circuit had required gay marriage everywhere within its jurisdiction. So all in all, the panel opinion may have come as close to its objective as possible.

  6. Sparkle Motion says:

    Who are these “many folks” who said it would convince Justice Kennedy? Seriously. Name them — because I think you’re making things up.

  7. Don in Phoenix says:

    It may have been written to convince Kennedy, but it was written by the man least likely to have any decision upheld by the Supreme Court. It’s too heavy-handed in its quotations from Kennedy decisions. That said, there aren’t five votes to dismiss, and there aren’t five votes to uphold Prop 8 either. I predict there will be a decision striking down Prop 8 on grounds that are both narrower and broader than Reinhardt’s attempt, that will have the end result of striking down all the mini-DOMA amendments under Romer but not mandating same-sex marriage an any state that doesn’t want it. The opinion will be by the Chief Justice, joined by Kennedy and Ginsburg, and be the narrowest ground that sustains the judgment.

  8. Bruce Boyden says:

    “Name them — because I think you’re making things up.” Well, Sparkle, you really know how to sweet-talk someone. I saw similar comments at the time, but I don’t recall where. If that’s not good enough for you, c’est la vie.

  9. Orin Kerr says:

    (I have provided a comment with some links to such reactions; it is awaiting moderation, as it has a few links.)

  10. Joe says:

    Some did think Reinhardt’s opinion (or some form of it) could convince Kennedy. The OP however (like Orin Kerr) has more of a tone of scorn, since they found that opinion specious. Marty Lederman et. al. explained how it was not though obviously it is debatable. Having a snark contest here, however, seems tiresome. I say this w/o needing to see Prof. Kerr’s links

  11. Joe says:

    [I didn’t see the comment awaiting moderation yet, but should have said that Kerr at the time made it clear he thought the opinion specious. The “scorn” here is more GM.]

  12. Sparkle Motion says:

    Thanks, Orin!

  13. Gerard Magliocca says:

    Sometimes you get snark, sometimes you get John Bingham, sometimes you get random posts about movies and TV shows. That’s the nature of blogging.

  14. Bruce Boyden says:

    Gerard, you MUST write your posts only in the way I would prefer to read them.

  15. Joe says:

    People can write blog posts, as do I elsewhere, however they wish w/i broad limits (there are some standards and practices). In response, people can comment and/or criticize.