Orin Kerr: “How Much Do the Factual Findings Matter in Perry v. Schwarzenegger?”
If the Supreme Court agrees to hear the case, I don’t think the factual record will matter very much. I think that for three main reasons. First, the Justices will know that this case presents a defining moment for their respective tenures on the Court . . . Second, the Justices will certainly recognize [that] Judge Walker was trying to use his facts to make an argument designed to persuade the Justices to agree with him. For better or worse, I suspect a majority of the Justices will respond to that dynamic by significantly discounting those facts. Finally, a majority of the Court had relatively harsh language about Judge Walker’s rulings on broadcasting the trial when it took the remarkable step of overturning his order back in January.
Orin Kerr: “More on Whether the Facts Matter in Perry v. Schwarzenegger”
(1) If the standard of review ends up being “rational basis,” the factual record is largely beside the point . . . Given that the rational basis standard “is not subject to courtroom factfinding,” the Court isn’t likely to pay much attention to Judge Walker’s courtroom factfinding if the law is subject only to rational basis scrutiny . . . (2) Several of the key factual findings in Judge Walker’s opinion are in the form of predictions, not facts . . . Judge Walker’s prediction-facts have no confidence levels, however. He doesn’t say that there is an 87% chance that permitting same-sex marriage will not affect the stability of opposite-sex marriages. He says that it is now a fact — with 100% certainty — that that will happen.
Eugene Volokh: “Why Judge Walker May Want to Stay His Own Decision Pending Appeal (in the Same-Sex Marriage Case)”
Prof. Rick Hasen (Election Law Blog) has an intriguing theory on this: “Getting an emergency stay request before Justice Kennedy during the Court’s summer recess is going to put a lot of pressure on the Justice to decide this matter quickly, and without the opportunity for the reflection that we’ve heard Justice Kennedy engages in when considering more difficult cases. The pressure of time could lead him to grant the stay, and to be put off by the plaintiffs for having brought the case in the first place.”
Eugene Volokh: “The Politics of Same-Sex Marriage, and Constitutional Amendments”
The most interesting politico-legal question raised by Judge Walker’s same-sex marriage decision, I think, is whether it will provoke a new — and perhaps narrower — round of Federal Marriage Amendment activity.
Orin Kerr: “How Do You Apply the Rational Basis Test to a Restoration of Prior Law?”
When determining whether the law is supported by a rational basis, is the right question whether the law that has been on the books for 100 years supported by a rational basis? Or is the question whether the public had a rational basis for restoring the law by passing the ballot initiative? Put another way, should courts assess the rationality of the law as an abstract matter, divorced from the context in which it was enacted? Or should they assess the rationality of the most recent passage of the law, including the context?
Dale Carpenter: “A Maximalist Decision, Raising the Stakes”
In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism — a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science. This maximalism will make the decision an even bigger target for either the Ninth Circuit or the Supreme Court. If that’s right, it magnifies the potential for unintended and harmful consequences for gay-rights claims even beyond the issue of marriage.
Eugune Volokh: Will the Justice Department Be Pressured to File an Amicus Brief in the Prop. 8 Case?
