Associate dean and professor at the UC Davis School of Law, Vikram Amar, predicts that Prop 8 will ultimately be decided in the Ninth Circuit, not at the Supreme Court:
If the Ninth Circuit reverses Judge Walker’s ruling and upholds Prop. 8, I think it improbable that the Supreme Court would grant the plaintiffs’ request to accept review. The two primary reasons the high court takes cases are:
— A disagreement among the lower courts on how to resolve a recurring legal question.
— An earth-shattering need to answer a major legal question right now.
Neither would apply here. There would be no conflict among the lower courts on the question of a federal right to gay marriage (no judge other than Walker has yet embraced one), and upholding Prop. 8 doesn’t change the world in the way that requires the court to weigh in immediately.
The Supreme Court justices (both conservatives and liberals) would, I suspect, be quite content to let the issue “percolate” in the lower courts – and state ballot boxes – for a while before deciding to address it.
The likelihood of Supreme Court review goes up a lot if the Ninth Circuit invalidates Prop. 8 on the broad grounds embraced by Walker – that all same-sex adult couples have a federal right to enter into marriage, period. Such a ruling would recognize a constitutional right in the western states (those covered by the Ninth Circuit – Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) that hasn’t been recognized elsewhere; under those circumstances, the justices would have a hard time deferring the issue.
What are the odds of the Ninth Circuit reversing Walker? They did it twice already in motions leading up to the Prop 8. Reason for hope?
