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What’s Really Behind the Supreme Court’s Decision to Block Access to the Prop 8 Trial?

“Like it or not, we are now well into the 21st century.”

Thus spake Alex Kozinski, chief judge of the Ninth Circuit court of appeals and a reliable wit, in rejecting the Judicial Conference’s imperiously worded “suggestion” that he “consider” the Conference’s position against televising trials. Kozinski obviously shared the common-sense view that the Prop 8 trial is a matter of significant public interest (and, implicitly, that the claims of intimidation by the defenders of Prop 8 are poppycock). Kozinski is a somewhat conservative, but truly bright and independent judge whose opinions can sometimes make you laugh out loud. (Favorite example, from a torts case : People try to cram more and more stuff into airplane’s overhead bins, including “the occasional deceased relative.”)

But Kozinski was Roberts-slapped by the Chief Justice, who presides over the federal Judicial Conference . The Conference doesn’t directly bind lower courts, but it might as well have in this case, as Roberts (likely writing for the 5-4 majority behind the per curiam Japanese screen) used a procedural argument to upend the lower court’s decision. I thought that Justice Breyer had the better of the argument in dissent:  The purposes behind the requirement of notice and a period for comment were met, even though the rule change was enacted hastily. Thousands of comments were received, and the arguments for and against televising were well and fully vetted.

I could live with a contrary decision, though, if it were truly grounded in an argument about procedural deficiency. But the more I study the Court’s opinion, the more convinced I become that this had little to do with procedure. The Court, after a tedious examination of the procedural issues, then expressed prim disapproval of the lower court’s decision, on the merits, to use this case to pilot the televising of trials. The Court also regurgitated the Prop 8 defender’s argument that witnesses would be intimidated, wouldn’t testify, and so on. What about the fact that many of these same witnesses have been proudly, even annoyingly public in other contexts? The Court:

These concerns are not diminished by the fact that some of applicants’ witnesses are compensated expert witnesses. There are qualitative differences between making public appearances regarding an issue and having one’s testimony broadcast throughout the country.

What are those differences? Who knows? The Court ignores the public interest in the case (except to regard it as a negative) and doesn’t bother to spell them out; and Justice Breyer, in dissent, gave this argument the burial it deserved. After noting that none of the witnesses themselves were complaining, he wrote:

And that is not surprising. All of the witnesses supporting the applicants are already publicly identified with their cause. They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the State advocating a “yes” vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse.1

But here’s one guess as to the difference the Court saw as important, but the one it dare not speak aloud: Public appearances can be sensational, focusing on talking points calculated to fire people up against marriage equality: Your kids will be force-fed “the gay lifestyle”; “gay marriages” will undermine “traditional” ones; religions are under siege from gay activists, and so on. These assertions have proven (maddeningly) effective in ballot initiatives, but they don’t work in court rooms. Sober public education, in other words, is the mortal enemy of the anti-equality forces. If you doubt this, consider the final devastating sentences from Margaret Talbot’s comprehensive New Yorker article on the case:

[O]ne of the arguments that the anti-gay-marriage side has increasingly turned to outside the courtroom is that allowing same-sex marriage would hurt heterosexual marriage. At the pretrial hearing, Judge Walker kept asking Charles Cooper, the lawyer defending Proposition 8, how exactly it did so. “I’m asking you to tell me,” he said at last, “how it would harm opposite-sex marriages.”

“All right,” Cooper said.

“All right,” Walker said. “Let’s play on the same playing field for once.”

There was a pause—it seemed like a long one to people in the courtroom, though it was probably only a few seconds. And Cooper said, “Your Honor, my answer is: I don’t know. I don’t know.”

If I’m right about what the Court was really worried about, it’s time to ask: Are Ted Olsen or David Boies, whose politically tone-deaf idea this lawsuit was, starting to have second thoughts about “getting to 5” (votes)? Probably not.

  1. That’s all the Court had before it; not the youtube issue, which the federal appellate court hadn’t resolved.
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