Tony Mauro is Supreme Court correspondent for The National Law Journal, an American Lawyer affiliate.
The first sign of how big Tuesday’s Supreme Court arguments in Hollingsworth v. Perry would be was visible even before the justices took to the bench.
Stacks of briefs, not usually seen on the bench, were piled high—nearly 100 were filed—in front of several justices’ seats. Later, when Justice Antonin Scalia announced the ruling in Florida v. Jardines, he joked that he was speaking "from behind these briefs here."
The courtroom was packed, with luminaries of the gay rights legal movement sprinkled throughout the spectator seats—Paul Smith, Chai Feldblum, Evan Wolfson, Suzanne Goldberg and Pamela Karlan, to name a few. From the White House came senior adviser Valerie Jarrett and White House counsel Kathryn Ruemmler. Justice Anthony Kennedy’s wife Mary was seen in the seats reserved for guest of the justices, and Chief Justice John Roberts Jr.’s now-famous lesbian cousin Jean Podrasky appeared to be sitting nearby, though her identification was not confirmed.
In the front row of public seating was actor-director Rob Reiner, a leader in the challenge against Proposition 8, along with others from the group he helped found, the American Foundation for Equal Rights. Lawyer Theodore Olson went over to embrace Reiner and the others before the gavel fell and the session began.
It was all-business as soon as the arguments started. The justices were fully engaged, and at times the back-and-forth of the discussion was intense. To make time for airing all the arguments, Roberts gave the lawyers extra time, expanding it from the allotted 60 minutes to 80.
All three lawyers who argued on Monday—Charles Cooper of Cooper and Kirk, defending Proposition 8, and Gibson, Dunn & Crutcher’s Olson and Solicitor General Donald Verrilli Jr. attacking it—tried to begin their presentations with arguments on the merits of the ballot initiative that banned same-sex marriage in California. Each time, Roberts interrupted to urge them to address the jurisdictional issue first: whether the proponents of Prop 8 have standing to defend it, in the absence of California state officials who declined to do so. It was a clear signal that the court was concerned about the issue—and seriously considering it as an escape hatch from deciding the merits if needed.
All the justices—except for Clarence Thomas, who kept to his habit of silence during argument—asked about jurisdiction, with more than a few expressing doubt that California could delegate the defense of a state law to individuals who have no fiduciary duty to the state.
In answering the barrage of questions, Cooper adopted a humble, almost apologetic tone, seemingly aware that some of his arguments were not what the justices wanted to hear. At times he almost whispered, perhaps afflicted by the same kind of scratchy throat that last year led commentators to conclude that Verrilli had bombed in his defense of the Affordable Care Act.
Cooper seemed most pained when he fielded Justice Elena Kagan’s question about whether 55-year-old opposite-sex couples could be barred from marrying if,as Cooper argued, the institution of marriage was historically aimed at fostering and protecting procreation. In such a pair, Cooper said awkwardly, "it is very rare that both parties to the couple are infertile."
Kagan did not seem at first to get the hint that Cooper was alluding to infidelity by older men. "I can just assure you," Kagan said, "if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage."
Cooper tried again but Kagan still did not seem to pick up on the meaning. Finally Cooper said, "Very few men outlive their fertility." The infidelity argument did not appear to take hold with other justices any more than it did with Kagan. Justice Antonin Scalia halfheartedly threw Cooper a lifeline by mentioning Strom Thurmond, the late South Carolina senator who fathered children into his 70s, albeit with a much younger woman.
Olson was up next, showing none of Cooper’s hesitancy. The former solicitor general forcefully argued that the Prop 8 sponsors do not have standing to defend it in court. On the merits, he said the proposition itself "walls off the institution of marriage" from a group of citizens who have long suffered from discrimination.
The court’s comfort level with Olson became clear when Justice Samuel Alito Jr. made a personal allusion while asking him about the ballot initiative tradition in California. "You know this better than I do, because you’re from California," Alito said.
But Olson got into a near-argument with Scalia, usually his ally in past Supreme Court cases. For most of the argument, Scalia seemed more subdued in his questioning than in recent cases on voting rights and immigration that earned him criticism. But Scalia harped on a question that Olson was not answering to his satisfaction. "When did it become unconstitutional to exclude homosexuals from marriage?" Scalia said. "1791? 1868, when the Fourteenth Amendment was adopted?"
Olson responded with questions of his own. "When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?" Olson asked. To which Scalia replied, "Don’t give me a question to my question."
Verrilli came last, offering a different way out for the court, suggesting that it confine its ruling not just to California, but to the nine states that have allowed civil unions. The justices were not buying that solution, but Verrilli seemed more surefooted than in last year’s health care arguments.
At one point Alito reminded Verrilli and the audience about the next day’s arguments in United States v. Windsor, on the constitutionality of the federal Defense of Marriage Act. It will be another day of intensity, no doubt, as well as history.
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