August 04, 2010

Why It Might Be Rational For Judge Walker to Stay His Own Ruling in the Prop. 8 Case

I have now had a chance to read Judge Walker's opinion in Perry v. Schwarzegger. I am by no means an expert io issues related to gay rights and constitutional law, but I am a pretty close observer of the Ninth Circuit and the Supreme Court, and it is from this perspective that I consider whether Judge Walker might stay his own ruling pending appeal. (Prop. 8 proponents requested a stay, plaintiffs asked for a chance to respond, and Judge Walker has temporarily stayed his order as he considers granting a stay of his ruling pending appeal.)

I assume that Judge Walker, like most lower federal court judges, does not like to be reversed. The opinion he issued today is no doubt the most famous (perhaps also the most important) that the Judge will issue in his life. You may agree or disagree with the judge's decision, but I think any fair minded observer would say that the Judge did a thorough and conscientious job, not hiding his analysis behind technical rhetoric, and grappling with the issues in a very straightforward way. There are certainly issues upon which Prop. 8 proponents can appeal--such as the judge's decision (around page 40) to exclude the proponents' expert testimony as unreliable under Daubert, and the judge's discussion whether "tradition" alone may provide a rational basis (or compelling interest) to justify a ban on same-sex marriage--but the opinion reads as solid and careful work. I imagine it was written primarily for one pair of eyes--Justice Kennedy's.

If Judge Walker denies a stay, then the request for a stay will be filed with the motions panel of the Ninth Circuit. As I explained, this month's motions panel is tilted liberal, so it is a good (but by no means certain) bet that if Judge Walker denies a stay, the Ninth Circuit will deny a stay too. I have little doubt that if the Ninth Circuit denies a stay, that a stay request will be filed with Justice Kennedy, who will then refer the matter to the whole court.

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.

In contrast, if Judge Walker grants a stay pending appeal (meaning no change in the marriage rules pending appeal), the the appeal proceeds on a more leisurely pace. It will be months before the record is completed and briefs are due. Barring expedition, it will be more months before the case goes to a Ninth Circuit. Depending upon what that panel does, there's a fair chance for a rehearing en banc. Eventually, this means a cert. petition filed before the Supreme Court. This gives Justice Kennedy more time for reflection. He could be more amenable to upholding the decision under this more leisurely scenario. (The risk (or opportunity) of the longer schedule, of course, is that there is some other personnel change on the Court that affects how the Supreme Court might handle the case.)

In short, granting the stay will lower the temperature of this case, and that might be the best way for the judge to get an affirmance down the line.

Posted by Rick Hasen at August 4, 2010 03:59 PM