Anthony Kennedy, California, Constitutional Law, David Boies, Gay, Gay Marriage, John Roberts, Samuel Alito, SCOTUS, Solicitor General's Office, Supreme Court, Ted Olson

The Proposition 8 Supreme Court Arguments: Standing and Standing

The scene outside One First Street after the argument.

Dearly beloved, we were gathered together at SCOTUS today to argue about these fourteen words: “Only marriage between a man and a woman is valid or recognized in California.”

But we talked a lot about standing. And we did a lot of standing.

What time did I get to the Court?

I arrived at 4:00 a.m., which ended up being just in the nick of time. I was the second-to-last person in the Supreme Court bar line to be given a white pass to enter the courtroom for the arguments in Hollingsworth v. Perry, which started at 10:00 a.m. sharp.

It was dark and to get to the end of the line, I passed many motionless lumps sleeping under tarps and metallic blankets. The public line started last Thursday, so it has been a long haul for those folks.

I was roughly number seventy in the bar line, and the mood was good. The attorneys near me were from different parts of the country: California, Texas, Louisiana, and some locals from D.C. We talked about the case, of course, and we commiserated about the cold.

Mitchell Katine was one of those attorneys. He represented John Lawrence in Lawrence v. Texas, the landmark 2003 Supreme Court case that struck down a Texas sodomy law, and was in the courtroom when Paul Smith argued for Lawrence. Smith gave Katine the quill that advocates receive, and he has it framed. Today is the ten-year anniversary of that argument.

After about four hours in line, which passed more quickly than I thought they would, we were escorted into the Supreme Court building for security checks, pass distribution, and most importantly at that moment, thawing.

In the courtroom, Ted Olson and David Boies, who represent the same-sex couples challenging Proposition 8, were just steps away. They seemed relaxed and greeted various people. Charles Cooper, representing the proponents of Proposition 8, was more contemplative. He sat at counsel table and appeared to be deep in thought.

Each of the three attorneys arguing, Cooper, Olson, and Solicitor General Donald Verrilli, started their presentations with the merits. Chief Justice John Roberts was having none of it, cutting them all off and telling them to start on standing. It became a running joke.

When Verrilli got up after Cooper and Olson, and did not start with standing, Roberts said, in good humor: “You don’t think you’re going to get away with not starting with the jurisdictional question, do you?” Verrilli replied: “As an amicus [who took no position on standing], I thought I might actually, Your Honor.”

Not everyone was as into the standing issue. Justice Anthony Kennedy pooh-poohed it, saying that if proponents of ballot initiatives do not have standing, the whole process of initiatives would be “thwart[ed].” Justice Samuel Alito made the same point.

In another interchange, though, Kennedy dropped a DIG-bomb, indicating that maybe the case was not “properly granted.” Dismissing a petition as improvidently granted, known in Supreme Court lingo as a “DIG,” is not common and often unsatisfying to both parties, especially in a case like this that has involved years of work. (I have heard that a DIG is also a type of scarlet letter for the clerk who recommended the grant — although in this case the justices knew what they were getting.)

DIG-shocked, Olson told Kennedy: “Oh, the case was certainly properly granted, Your Honor.”

In rebuttal, Cooper explained: “[T]hat is the one thing on which I wholeheartedly agree with my friend Mr. Olson.” The petition “was properly granted.”

Once the attorneys got to the merits, the overall message seemed to be: “Don’t expect any earthshaking, broad rulings in favor of same-sex marriage.” Of course, health care showed that the justices can sometimes play devil’s advocate or come to different conclusions after argument.

The two most likely swing votes, Roberts and Kennedy, were cautious. Roberts called marriage a “label” and wondered aloud why more was needed when same-sex couples have all the rights of other couples.

Kennedy, who wrote Lawrence and Romer v. Evans, both major wins for gay rights, focused on “uncharted waters” and the newness of same-sex marriage.

I expect Kennedy’s comfort level will be greater with Wednesday’s DOMA issue.

But we’ll talk about that tomorrow. See you bright and early.

Attorney Michelle Olsen writes for the National Law Journal’s Supreme Court section and publishes Appellate Daily, a Twitter feed and blog about federal appeals. She can be reached at

(hidden for your protection)

comments sponsored by

Show all comments