Can SCOTUS make California defend prop 8?

[dsc]

http://andrewsullivan.theatlantic.com/

As a trial attorney, I think people are smoking crack if they think the Supreme Court will approve gay marriage.

But here's the problem for the Supreme Court in overturning Judge Walker's decision (which they desperately want to do). There was almost no defense of Prop 8. Under the law Jerry Brown as state AG was supposed to mount a defense of Prop 8 which - like it or not - was the law of the state of CA. As a result Prop 8 got no real defense except from the intervenors who were a bunch of bumbling stumbling idiots. Their witnesses didn't show up, or gave confusing testimony, or were withdrawn at the last minute. There was almost no defense put on - true legal malpractice. Indigent defendants in minor cases get better defenses from public defenders.

Boies and Olson won by default. Do people really believe the most important social issue of our day is going to be decided on default, and the Supreme Court is just gonna say "ok whatever". Dream on.

My guess is the Supreme Court is going to remand this back to California federal court with instructions to the State of CA that it must mount a defense - most probably with outside counsel. Then there will be another trial, which given what we know of the 9th circuit will result in another pro-gay ruling (I hope). Then back through the appellate process and ultimately back to the SC again. Estimated time before the SC actually rules on the merits: five to six years.

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[FreeState]

1. Charles Cooper - the lawyer for Yes on 8 - is a very respected and capable lawyer

So I highly doubt this article. See: http://en.m.wikipedia.org/wiki/Charles_J._Cooper

"Charles J. "Chuck" Cooper is an appellate attorney and litigator in Washington, D.C. and a founding member and chairman of the law firm Cooper & Kirk, PLLC. He was named by The National Law Journal as one of the 10 best civil litigators in Washington, he has over 25 years of legal experience in government and private practice, with numerous cases in trial and appellate court as well as several appearances before the United States Supreme Court."

[dsc]

2. He did a sucky job in this case

I am glad though, that they had decent lawyers who just did a bad job.

[FreeState]

3. I'm not sure I would say that -

I think what we are witnessing is that all of the arguments the anti-gay proponents use in the public debate are not legally sound. David Boise mentioned this in a talk he gave last week. He was asked if he could have argued for the other side. He said the answer to that is nearly always yes because both sides nearly always have some reasonable arguments. However, in this case he said he could not because there simply is no legal defense at all for the arguments they rely on.

Cooper has done a good job in pressing procedural issues (getting cameras out etc).

I don't believe states are required to defend laws they disagree with either (there is some debate about this on the Federal Level, but its not unusual, from my understanding, to have states refuse to defend laws they disagree with).

[GodlessBiker]

4. No, he didn't. It's as if he had to defend the geocentric model of...

the solar system. What could he have done that he didn't do? There is simply no science to support his side.

[dsc]

6. He did choose the case

but more to the point, even calling Dr. Cameron would have been better than what he wound up doing. I am not saying a better defense would have led to a different result, but I do think a better defense did exist.

[smoochpooch]

5. how could they force the state to "try harder?" The court can't try the case for the state.

It can't just say, "You only had 3 witnesses, re-litigate with at least 5." Or should it be at least 10? Or 50? How would a state know when it has satisfied the court's subjective test? States and the federal government have to litigate laws they don't agree with all the time, it's not like ineffective assistance of counsel in a criminal case.