Last word (for now) about reading Ninth Circuit tea leaves associated with the stay ruling in Perry

I emailed Prof. Hasen after my last update to my long post from Monday and Tuesday in which I was trying to read tea leaves from the composition of the Ninth Circuit panel that stayed Judge Vaughn Walker's invalidation of California's Proposition 8. Prof. Hasen had been quoted in the press as saying that a new and different panel would definitely hear the appeal on its merits.

In his prompt and gracious email reply, he has confirmed to me that he was indeed relying in part on his personal experience from past appeals in the Ninth Circuit, and he pointed me to the Ninth Circuit's Standing Orders, which (he said) clearly distinguishes between "motions panels" and "merits panels."

The Standing Orders, which run to some 122 pages, is a set of procedures and rules distinct from and supplementary to the Federal Rules of Appellate Procedure and the Ninth Circuit's own local rules. In them, for example, are several references (e.g., sections 1.12 and 3.7) regarding how the Ninth Circuit handles "comeback cases," but they don't seem to speak specifically to this situation. Much of Chapter 6 of the Standing Orders relates specifically to motions and motions panels, however, and to the coordination of actions by the motions panels once a case has been assigned to a merits panel either for summary disposition or for oral argument.

I have not read the Standing Orders carefully, but I'm more than willing to defer to Prof. Hasen's reading of them and his personal experience. If I do understand them correctly, however, there either has been, or soon will be, a merits panel assigned to this case in connection with the briefing and December oral argument ordered by the motions panel. And from that moment on, that merits panel will have plenary (complete) authority over everything to do with the appeal (subject, of course, to eventual en banc and SCOTUS review). Prior motions panels will be out of the picture entirely (subject only to the possibility that one of those same judges may, by random assignment, end up on the merits panel too). And it's likely that neither the public nor the litigants will be told who's on the merits panel until shortly before the oral argument.

Thus endeth my tea leaf reading for now.

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As for the significance of the motions panel having granted the stay:

Prof. Hasen was also kind enough to point me by email to this later post of his on the American Constitution Society's blog. (The ACS has been described as "the left-leaning equivalent of the Federalist Society," for those of my readers not immediately familiar with it.) I agree with almost all of what he's written there, including his ultimate conclusion that "for those who want to predict what will happen in the appellate courts, there's really very little to go on so far." But I would quibble slightly with his downplaying of the role of probability of success on the merits. He writes:

[S]ome have suggested that the decision to grant a stay must have reflected a belief on the part of the motions panel that the appeal had merit, because judges are supposed to take likelihood of success on appeal into account in deciding whether or not to grant a stay. [I'm one among many who've made that suggestion. — Beldar] Though it is possible that likelihood of success on appeal played a part in the motions panel's decision, my guess (and it is only a guess, because the motions panel offered no explanation for its stay order) is that a stronger factor was a desire to preserve the status quo pending appeal. Without a stay, there could have been a number of gay marriages performed while the case was on appeal, and in the event that Judge Walker's decision was reversed on the merits, then there would be further litigation over the status of those marriages and potentially a lot of disappointed people and difficult financial and family law issues to untangle. Preserving the status quo has always been a very strong factor in considering whether or not a stay should be granted.

Prof. Hasen's certainly right that maintenance of the status quo is, in theory, also a value that's supposed to be taken into account in deciding stay applications. Determination of whether and how much that particular factor counts in a given case often leads litigants to argue about what actually is the status quo. Here, it depends how far "ante" you go — do we count the days when the California Supreme Court had judicially imposed same-sex marriage, or do we only count the days after Prop 8, approved by the voters in reaction to that judicial action, re-imposed heterosexual marriage as the exclusive possibility?

Moreover, those seeking ssm by judicial decree — and I don't know if Prof. Hasen is among their number or not — always argue that the right of gays to marry is a "fundamental right," the abridgment of which is a particular tragedy, and the sort of right that federal courts ought to be most aggressive in protecting. Can you imagine that in weighing the factors for and against a stay application, a federal judge would give defining weight to maintaining the status quo over protecting a fundamental constitutional right that's being continuously abridged if, for example, the status quo consisted of California denying an opportunity to marry to everyone of Asian descent or of the Roman Catholic faith?

And I'm still entirely unimpressed with the argument that a Ninth Circuit stay is good news for all ssm-supporters because "an emergency stay request could have brought the issue to [presumed swing-Justice Kennedy] without giving him time for adequate reflection and rumination on the constitutional issues." That amounts to saying "Our position is weak right now but it might get better later, or better if we have lots more time and opportunity to talk Justice Kennedy into it." It amounts to a prediction by ssm-by-decree supporters that they think Kennedy's first instincts will be against them, a concession that they're fighting an uphill battle with the very Justice whose vote they most need.

But it's not as if same-sex marriage is an issue that Anthony Kennedy's never had to think about. Do we think he didn't bother to read Justice Scalia's dissent in Lawrence v. Texas, which explicitly predicted — as a reason against employing the substantive due process argument upon which Justice Kennedy's majority opinion was then relying — that the majority opinion in Lawrence would be used (as District Judge Walker has now done) as a ground to impose same-sex marriage by judicial decree?

As I've said before, concerns about how the presently composed SCOTUS will come down on these issues would have been a very good reason for Perry not to have been filed in the first place, because (from the viewpoint of ssm-supporters in general) it's created the worst possible setting — invalidating seven million fresh California votes on the subject — to impose same-sex marriage by judicial decree. Saying that another way: It's hard to imagine a more dramatic display of the anti-democratic nature of judicial activism.

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UPDATE (Thu Aug 19 @ 12:45 a.m.): By email, Prof. Hasen points out that even to the extent that the motions panel did base their stay ruling on their views as to probability of success, he's still disinclined to read anything into the motions panel decision because the merits will be decided by three altogether different judges. He'd also made that point in his ACL blog post that I linked and quoted above, and I readily concede it. Three new random new judges won't be bound by any precedential effect or law-of-the-case or anything else from the motions panel's ruling this week; when the members of the merits panel first begin forming definitive opinions on the merits, they'll presumably be approaching those issues afresh, working from newer and more thorough briefing. Thus when it comes to predicting what the merits panel might do, this ruling by the August 2010 motions panel has value only as a spot survey of three random Ninth Circuit judges, and then only to the extent that they gave weight to "probability of success" as one of several competing criteria (that include maintenance of the status quo).

Still, the stay opponents couldn't wrangle even a dissent, maybe even a special concurrence, from a panel with two Clinton nominees? On a civil rights case that's under a national microscope? When the district court had already refused a stay? Would many people have predicted that result last week, if all they'd known were the issues, the district court's ruling, and the political party of the presidents who appointed these judges?

I agree these are weak tea leaves, and I am admittedly quibbling by continuing to attribute a particular meaning to them. But to whatever extent this interim ruling does mean anything, I think it doesn't bode well for those who're hoping the Ninth Circuit will affirm court-imposed same-sex marriage. If I were in Olsen's or Boies' shoes — and I also readily concede that no one's actually asked me to fill them, and their team appears to be prepared to struggle on without my assistance — I'd consider the ruling a small piece of bad news that's somewhat troubling even beyond its immediate impact on same-sex partners eager to marry in California.