Kennedy Doesn’t Like to Watch

Posted in Case Reports, Clairvoyance by Mike Sacks on January 13, 2010

The Court just issued its first party-line, 5-4 opinion of the term, staying the broadcast of the Prop. 8 trial underway in California to federal courthouses in San Francisco, Seattle, Portland, Brooklyn, and Pasadena.*  Read SCOTUSBlog’s write-up and download the opinion here.

The majority paints its decision in procedural terms, though I find it difficult to believe that the vote would break down similarly if the potentially broadcasted case’s substance was, say, tax evasion.  In such a case containing no hyper-charged political pretext, we could have very well seen a nearly-unanimous vote one way or the other.

Also, note Sotomayor’s vote with the dissent.  If Souter’s distaste for Supreme Courtroom cameras extended on down to the district court level, perhaps he would have voted with the majority, lending the decision a modicum of integrity.

Finally, I am intrigued as to whether this opinion says anything about Kennedy’s potential vote should (when, really) Perry v. Schwarzenegger comes up to the Court.  While one can be fairly certain that the other eight justices voted their policy preferences for Perry‘s underlying issue, something tells me that Kennedy remains eminently swingable.

On the other hand, Kennedy’s vote with the majority today could mirror his abortion jurisprudence.  That is, just as he upheld abortion rights in Casey only to limit its reach in Gonzales v. Carhart, so too could marriage exist beyond the bounds of Kennedy’s gay rights rulings.

*Thanks to commenter Mark for correcting my original statement that the Court stayed the YouTube broadcast.  They didn’t.  But the Court’s temporary stay may be the functional equivalent of a permanent stay on all broadcasting, writes Linda Hirschman for NPR/The Nation:

As a technical matter, the temporary stay is only good until the Court addresses a formal appeal for a permanent stay. But the standard for extending the temporary stay includes the requirement that the court thinks a majority of its members would vote in favor of making the stay permanent. So this 5-4 division looks like the ball game.

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  1. Mark said, on January 15, 2010 at 11:12 am

    Actually, the majority opinion — at page 7 — specifically defers addressing whether Internet broadcasting (such as on YouTube) would be appropriate: “We do not address other aspects of that order, such as those related to the broadcast of court proceedings on the Internet, as this may be premature.” The opinion bans only the “live streaming of court proceedings to other federal courthouses,” because that is all the California district court permitted.

  2. […] smacked down a challenge to the amendment in 1997.  Second, Justice Kennedy, who may or may not be favorable to gay rights when it comes to marriage, is absolutely and unequivocally against […]

  3. […] Kennedy might not have liked to watch this case at first, but he will most certainly enjoy being in the center of the action once Perry v. Schwarzenegger gets to the Court..  A jurisprudence of rights as opposed to identities appeals to Justice Kennedy, whether or not American society has caught up to his ideal.  And as opposed to his more conservative brethren, he sees rights as robust vessels rather than narrow privileges.  For this reason, Walker’s Due Process analysis broadly reading the right of marriage will be Kennedy’s reasoning of choice, while we can count on Scalia to see such a robust reading as leading, at the very least, to unions between all consenting adults no matter how many or how closely related. […]

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