Commentary Magazine


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Heading for the Supreme Court?

The Ninth Circuit is known for its judicial adventurism (“activism” doesn’t begin to describe it) and the high reversal rate in the Supreme Court of its decisions. So this comes as a mild surprise:

A federal appeals court put same-sex weddings in California on hold indefinitely Monday while it considers the constitutionality of the state’s gay marriage ban.

The decision, issued by a three-judge panel of the 9th U.S. Circuit Court of Appeals, trumped a lower court judge’s order that would have allowed county clerks to begin issuing marriage licenses to same-sex couples on Wednesday.

But the plaintiffs (who sought Prop. 8′s invalidation) were pleased with the expedited briefing schedule that provides for oral arguments the week of December 6. And this may very well not end with the Ninth Circuit. It seems the sort of case, one with exceptional and long-range implications, that the Supreme Court would take, regardless of which way the Ninth Circuit rules. We then will see how consequential was the 2008 election and the appointment of two liberal justices that followed.

Most of the domestic agenda pushed by Obama is reversible or may never go into effect if the 2010 and 2012 elections put Republicans back in power. But Supreme Court appointments, especially since presidents started appointing youthful justices, last a very long time, and the handiwork of the appointees is difficult to reverse. We will get a glimpse of just how influential the Obama justices will be.