By Mike Dorf
As promised earlier in the week, I've now watched and listened to the oral argument in Perry v. Schwarzenegger. After a couple of quick observations, I'll come to the point that inspires the title for today's post:
1) The lawyers all acquitted themselves quite well. The panel gave Robert Tyler--the lawyer for the Imperial County Deputy Clerk who sought to intervene--a hard time for two gaps in his knowledge of the case, but on both occasions I thought the judges were a bit unfair. Judge Hawkins called Tyler out for not knowing whether the County Clerk (as opposed to the deputy) was elected or appointed. Tyler at first said he didn't know, leading to his chastisement, then he said he thought she was appointed, then said he didn't know who appointed her, and then at the end of his argument apologized because one of his associates had handed him a note saying she was elected after all. This created some awkward moments but they were all for show. Tyler was right that it doesn't matter whether the Clerk is appointed or elected. Judge Reinhardt also gave Tyler a bit of a tough time for guessing--in answer to another question from Judge Hawkins--that a deputy district attorney has the same degree of autonomy relative to the District Attorney as a Deputy Clerk has relative to a County Clerk. "If you don't know, say so," Judge Reinhardt said, which is sound advice as a general matter but here too, the underlying point was irrelevant. Nothing in the case turns on the nature of the duties of a deputy district attorney.
2) The case should be exhibit A for cameras in the Supreme Court. I'm sure nearly all of the viewing audience was baffled by the first hour of the argument--which focused on the standing questions--but for those of us who find this stuff interesting, it was great to have the live audiovisual feed, preserved on the web. The oral argument looked to me no different from anything I've seen in the past. None of the lawyers and none of the judges appeared to be doing anything differently from their usual m.o.
3) And now my main point: The plaintiffs are arguing on appeal that Judge Walker's ruling is narrow in scope, binding only on the California Governor, Attorney General, two other state officials, and the County Clerks of Alameda and Los Angeles counties. That may seem odd, given that usually victorious parties want the ruling they have obtained to be binding as broadly as possible. But the fewer people who are bound by the ruling, the fewer people have standing to appeal. According to David Boies, the way the district court judgment will become effective statewide is that after the stay on the mandate is lifted (presumably by the Ninth Circuit), the Attorney General or the Governor will go into state court and seek an order binding all of the county clerks and other state officials. This is a very peculiar position for a number of reasons:
a) It was risky. As Judge Reinhardt pointed out, if the state election had come out the other way, perhaps the new AG and Governor would not seek to bind the county officials in this way.
b) It's not at all clear why the Governor and AG need the assistance of the California courts to accomplish this task. If, as the plaintiffs contend, on matters of marriage, county officials are under the direction of the statewide officials, shouldn't the Governor or AG be able to issue some sort of administrative order to local officials directing them to start issuing same-sex marriage licenses?
c) If the Governor and AG can do this in response to losing (after not putting up a fight) in the district court, couldn't they have done that without even a lawsuit being brought? Boies gave the best answer he could here, which was to say that they had chosen not to--thus, even now the Governor and the AG are enforcing Prop 8 insofar as they are not directing local officials to issue same-sex marriage licenses. But Boies did not say--and I think his theory of the case precludes him from saying--that the Governor and AG lack the authority to order county officials to issue marriages licenses right now. And if that's his theory, then it's hard to know why that doesn't run up against the objection (raised by Judge Smith) that the Governor and AG are attempting to exercise a power that California law denies them--namely, to nullify a ballot initiative.
d) For me the most tantalizing moment during the discussion of the procedural issues came when Judge Reinhardt almost asked the following question: Why didn't the plaintiffs sue all of the county clerks? Boies acknowledged that this was an option. Reinhardt said that in light of the high level of competence of Boies and Olson, this could not have been an inadvertent oversight. But then he backed off from asking the why question. Boies must have sensed that Reinhardt was still wondering about it, but all he said in response was that other cases have proceeded in the same manner.
Boies cited Romer v. Evans and the California state court litigation over same-sex marriage, but I had another case in mind: Bush v. Gore. There, recall that the Gore strategy was to seek recounts only in select counties with clear Democratic majorities. The Florida Supreme Court rejected the Gore proposal and instead ordered a (limited) statewide recount (later halted by the SCOTUS), but in attempting to cherry-pick counties for recounting, the Gore team--including Boies--ceded much of the moral high ground. They could no longer argue credibly that they simply wanted an accurate count. I don't think that seeking a statewide recount from the beginning necessarily would have led to a different result, but the attempt to game the recount certainly didn't help.
Fast forward to the Boies/Olson strategy of only suing two county Clerks. Could this have been a similar tactical choice right from the beginning, aimed at engineering precisely the situation we now have, in which a district court ruling of nominally limited scope ends up being both effective statewide and unreviewable on the merits? If so, I've got to say that this strikes me as too clever by half. Boies and Olson had a claim to the moral high ground in bringing this case when mainstream gay rights litigators (and their allies, including me) had been timid. By directly making the argument that Prop 8 denies due process and equal protection, they signaled a refreshing willingness to make the strongest claim possible, and to let the chips fall where they may. But in apparently manipulating the procedural doctrines for advantage, they sacrifice at least some of that moral high ground, making themselves look no less the cautious schemers than the organizations whose warnings they ignored in filing suit when and how they did.