Blue Mass Group

Reality-based commentary on politics.

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  1. David, Fenway or another of our resident JDs can fill me in. Seems to me if law is unconstitutional it’s voided-unless the stay simply enables the laws proponents to take it up to the next level? In which case, how will that court rule? I doubt we will see SCOTUS take this up again so the circuit courts will make it break equality in these regions. Would their rulings have regional implications or apply to specific states?

    FWIW Cook County just overturned it instead of waiting until July when the law takes into effect.

    • The idea is that it’s unconstitutional as far as this judge can see, but the possibility remains that the 5th Circuit Court of Appeals – or the U.S. Supreme Court – will rule differently. In that event there’d be a logistical problem of people getting married just to be told they really don’t have the right under state or federal law where they live. Hence the stay.

      Each circuit covers a geographical area (the 5th is TX, LA, MS; we are in the 1st (MA, NH, RI, ME, Puerto Rico). If the 5th Circuit affirms this district judge’s ruling, refusing same-sex couples a marriage license would be deemed unconstitutional throughout TX, LA, and MS, but that affirmance itself might be stayed pending appeal to the 5th Circuit en banc (meaning all the judges of the 5th Circuit, not just a 3-judge panel as usually hears appeals) or to the U.S. Supreme Court.

      In recent years the Supreme Court has taken up cases where, after some time passes, the circuits do not agree on a question. First they tend to wait for a pattern to emerge among circuits one way or another such that the outlier circuit(s) will reconsider.

      • How likely is it that this will go back to SCOTUS then?

        Also Puerto Rico seems like the odd one out for ours no?

        • I’m imagining it gets to SCOTUS. It’s a very big issue and there are bound to be some differences of opinion, as to the ultimate issue or ancillary details, among the 12 federal circuits. Personally I’d hope it doesn’t happen until a change in composition, though Kennedy conceivably could provide a 5th vote on the current Court and Robert, mindful of not being Roger Taney redux in the history books, is a wild card.

          PR is indeed the odd one out in the 1st Circuit geographically. Before the war of 1898 the circuits existed, largely as they do today. The new territories had to be stuck somewhere. The 3rd Circuit (NJ, PA, DE) got the U.S. Virgin Islands. The 9th, a very busy circuit in the far West, got not only Alaska and Hawaii but also Guam and the N. Mariana Islands.

          The 1st Circuit has one Puerto Rican judge (Judge Juan Torruella), based in San Juan but coming regularly to Boston for a week’s worth of arguments as part of assigned three-judge panels. He is 80 and I expect that, when he does retire, there will be clamor to maintain at least one Puerto Rican judge on that court. Puerto Rico, after all, has 3.7 million people, about the same as ME, NH, and RI put together. Interestingly, Judge Torruella is a graduate of BU Law but had no other ties to Boston before being appointed to the 1st Circuit.

  2. That is really something.

    I am not entirely sure that everyone will remain thrilled after the Fifth Circuit has its way, though. I have lost track of all of the cases as they come and go, though. Does anyone know the score in the Circuit courts?

    • in the circuit courts. There have been six federal district judges, in four circuits (4th-VA, 5th-TX, 6th-OH and KY, 10th-OK and UT), all ruling that discrimination in marriage is unconstitutional. In none of those cases has the appeals court ruled as of yet. I agree with you that the 5th Circuit (and the others too) may ruin the party.

      • I don’t think that it gets to the Supreme Court until there are crooked numbers on both sides of the score. And the wait will make things interesting:

        The present 9 justices, ranked in descending order of age, are:

        Ginsburg -81
        Scalia – 78
        Kennedy – 78
        Breyer – 76
        Thomas – 66
        Alito – 64
        Sotomayor- 60
        Roberts – 59
        Kagan- 54

        Three of the next four that are, by this crude measure, most likely to cease being a Justice of the Supreme Court for whatever reason, are on the good-guys.

        I was kind of hoping that Justice Ginsburg would call it a day before the 2014 mid-term elections, as I do not think that the Senate will be kept by the Democrats then. That pretty much leaves this year for the President to get an appointment through.

        Best case scenario there seems to me to be finding a justice appointed by a Democratic president–Obama or (Next) that gets the backing of Senators Grassley and Hatch, without significant opposition from Senators Sessions and Cruz. Unlikely.

        Worst case scenario is a nominee by President Walker with the enthusiastic support of Chairman Grassley and Senator Hatch, along with Majority Leader McConnel, who no longer need worry about the filibuster.

        • I was kind of hoping that Justice Ginsburg would call it a day before the 2014 mid-term elections, as I do not think that the Senate will be kept by the Democrats then.

          It’s currently 55-45 Dems, and the Dems have the VP. That means for the GOP to win the Senate, they need +6.

          Dems are defending 21, including AK, AR, LA, MT, SD, NM, IA, WV, VA, NC, and MI — all of which could reasonably fall into GOP hands if we ignore the dynamics of the personalities of the candidates themselves.

          GOP is defending 15, including ME, TN, KY. Same disclaimer.

          So yeah, the Dems are playing a whole lot of defense. BUT… the Dems only have four incumbents retiring so far (SD, IA, MI, WV). GOP has two (NE, GA). The wikipedia has sources for everybody else running (though of course they can change their minds). A browse of the predictions on the wiki page show GOP gaining four seats (and a number of tossups). Remember, the GOP needs six.

          My bet: GOP gains 2-4. Both parties will lock down their “likely” states and extend add to their advantage in their “leans” and there just won’t be that much left. Then in 2016 the Dems will clean house, gaining a whole string of seats.

          Still, I appreciate your point, and it isn’t out of the realm of reasonable possibilities. I had really hoped we’d see another retirement or three by summer 2014. But, if Hillary Clinton wins the White House in 2016, it’s hard to imagine that the SCOTUS won’t lean left by 2020.

          • I think Nunn has a real shot in GA, Grimes will make it close and waste McConnells time and money but I don’t see her beating the turtle-it will be a nailbiter though. I see Landrieu winning while Pryor is a goner. MI and IA will retain the dems, but we will lose WV. SD is a wilcard, particularly with Larry Pressler possibly splitting the GOP vote and a strong populist in Weiyland.

            • It would be great if Cutler could take his millions and near win last time and run against Collins instead of giving the Blaine House to lePaige again.

          • I am no Nate Silver– in fact I have been waiting for him to turn the lights on so I can see if I am wrong– and my sense is “gut” only.

            But the list of states in play alone makes it seem like it is going to be a VERY steep hill for Democrats. It seems like Dems are defending many states that are not “blue”– HI being the exception, but are rather purple or even pretty red. AK? SD? WV? On the other hand, Maine is the only GOP seat that isn’t in a rather red state.

            So, all gut. Where are you 538? But if I am a Democrat (noun!!), I don’t like the position of the pieces on the board.

            Also, if the swing of the Supreme Court is in play, and President Clinton’s party doesn’t control the Senate, I am not confident that all of the nominees aren’t “status quo” with the departing justice AND 75 years old at appointment.

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