Quantum Meruit

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Month: November, 2012

No Word Yet on Same-Sex Marriage

Even though the Supremes held their weekly conference today, there’s been no word on the same-sex marriage cases. They could issue orders on Monday, or hold off even longer:

If no orders on any of these cases emerge on Monday, the next indication of what the Court may be doing with the issue could come with re-setting them for the private Conference that will be held next Friday.  It is not uncommon, in cases that have some complexity, for the Court to require more than one Conference sitting to decide how to proceed.  Ordinarily, the Court re-schedules cases after releasing orders and opinions from a Conference.  Thus, that could happen on Monday or Tuesday of next week — orders are due Monday, one or more opinions Tuesday, but only in cases already heard.

They probably want to tread carefully, here. Same-sex marriage is the biggest civil rights issue of our generation.

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The Fate of Prop Eight

This Friday, the nine justices of the U.S. Supreme Court will enter a stately conference room at One First Street to decide whether to take up two same-sex marriage issues. One issue has rocketed up to the Court in the last year: the constitutionality of the Defense of Marriage Act (DOMA), a federal statute that defines marriage for federal purposes as only between one man and one woman. The other issue, which has taken four years to get here, is the constitutionality of California’s Proposition 8, the 2008 voter initiative that amended the state’s constitution to define marriage as between one man and one woman.

DOMA is a no-brainer. Of course the Supreme Court will have to decide the constitutionality of the federal statute, especially as more and more District Courts and Circuit Courts find DOMA unconstitutional. Prop. 8 is the stickler.

It takes only four justices to grant a writ of certiorari. And there are three possible scenarios. Conceivably, the four liberal justices could grant cert in order to uphold Judge Stephen Reinhardt’s opinion finding Prop. 8 unconstitutional. Then again, the four conservatives could grant cert in order to reverse it. Or, neither side could do anything. The onus is on the conservatives to take the initiative in reversing Judge Reinhardt’s decision. Unless they think they can get Justice Kennedy on their side, they might let California slip away into heathenism.

They could rationalize it pretty easily: Prop. 8 is only a state law and it suffers from the unique situation of outlawing something that the state supreme court had already found legal. (The California Supreme Court had determined that the state constitution required that same-sex marriage be available, prompting the initiative.) This is something Judge Reinhardt focused on in his opinion: the federal constitution doesn’t allow the state to giveth and then taketh away without a really good reason. Judge Vaughn Walker, at the trial court level, found that the reason for taking rights away was animus toward a particular group, an impermissible justification, according to Justice Kennedy in both Romer v. Evans and Lawrence v. Texas. Judge Walker’s opinion was a love letter to those decisions and also a challenge, daring Justice Kennedy to renege on everything he said in the prior cases.

Besides, the conservatives could say, states are the “laboratories” of the Union. It’s part of our collective national political schizophrenia—enshrined in the Constitution—to allow states to permit different wildly different things. The Court recognized as much back in Miller v. California, where it said that “contemporary community standards” determined what was obscene, without clarifying what the “community” was.

But even if the conservatives restrict the reasoning of Prop. 8 to California, it would be hard to ignore the fact that we’re dealing with the federal constitution. The Prop. 8 case is a test case for all the 29 state constitutional amendments that outlaw same-sex marriage. All nine justices know this. Even if Perry v. Brown gets its writ denied, there are still 28 more cases to go in the next few years. Is Chief Justice Roberts looking for efficiency or merely to get through the day?

Lessons Learned?

After the 2008 election, it was said in The Papers that Republicans had to do some soul-searching, figure out who they were in a United States that didn’t really look like them anymore.

Then the party decided to embrace its conservative wing whole-hog in 2010. Yes, the lesson they learned was that they weren’t conservative enough!

Now it’s 2012, and even as the demographic numbers come in, some conservative pundits (though those people should probably be out of a job, if their prediction quality is any indication of their qualifications) are saying that the party should double down on conservatism . . . again!

The demographics are striking: Romney won white people. Obama won everyone else. For the second time in recent history, older people did not elect the president. Young people did. Obama outperformed Romney among Latinos by 40 points. And Latino voters aren’t going anywhere.

Then again, if Republicans want to stray even redder and obliterate their party, they can go right ahead. If Karl Rove and Donald Trump’s histrionics are any indication, the Republicans could use a managed bankruptcy.

Romney’s Victory Tomorrow: Great or the Greatest?

Even as the so-called mainstream media insist that the election is going to be razor-thin, and even as Nate Silver predicts a decisive Obama victoryDigby memorializes conservative election projections of the landslide to end all landslides, just in case:

First up, Karl Rove:

My prediction: Sometime after the cock crows on the morning of Nov. 7, Mitt Romney will be declared America’s 45th president. Let’s call it 51%-48%, with Mr. Romney carrying at least 279 Electoral College votes, probably more.

Next, Michael Barone:

Bottom line: Romney 315, Obama 223. That sounds high for Romney. But he could drop Pennsylvania and Wisconsin and still win the election. Fundamentals.

Then there’s Glenn Beck:

Story on the blaze on all those who are now saying what I have said for a while: landslide for Romney. 321 electoral votes.George Will has 321 Romney, 217 Obama (though he forgot his own numbers on the air):

I forgot my exact number. I guess you have a graphic here. I guess the wild card in what I’ve projected is I’m projecting Minnesota to go for Romney. Now, that’s the only state in the union, because Mondale held it — native son Mondale held it when Romney was — when Reagan was getting 49 states — the only state that’s voted Democratic in nine consecutive elections. But this year, there’s a marriage amendment on the ballot that will bring out the evangelicals and I think could make the difference.

The immortally wrong Dick Morris:

We’re going to win by a landslide. “It will be the biggest surprise in recent American political history.” “It will rekindle the whole question on why the media played this race as a nailbiter where I think in fact Romney’s going to win by quite a bit. My own view is that Romney is going to carry 325 electoral votes…I think he’s going to win Florida, Virginia, North Carolina, Indiana…Iowa, Ohio, New Hampshire, Pennsylvania, Wisconsin and Minnesota and Colorado. This is going to be a landslide.

Again, Nate Silver is suggesting that Ohio, Pennsylvania, Wisconsin, and Minnesota will go to Obama in the 90%+ range of certainty (except for Ohio, at 86.8%). What does Dick Morris know that the rest of us don’t? He must have The Math.

Some conservatives, though, are already doing some Sunday-morning quarterbacking.