The Supreme Court Drops The Ball … Again

The current US Supreme Court (SCOTUS) has handed down some really excellent decisions, such as in the Heller, McDonald, and Citizen’s United cases. They’ve also managed to hand down some real stinkers. The Obamacare case comes immediately to mind.

Now they can add the case of Perry v. Hollingsworth, the case about California’s Proposition 8, to their Hall of Shame.

th[6] (2)Rather than deciding the merits of the case, the majority dismissed the case and remanded it back to the Ninth Circuit Court of Appeals, meaning that the Circuit’s finding that the Prop 8 ban was a violation of federal constitutional rights remains in effect. They did this on the basis that, since the state’s officials – the Governor (Schwarzenegger) and Attorney-General (Jerry Brown) –  refused to do their duty to uphold and defend the properly-enacted ballot initiative, the proposition’s proponents who did actually work the case had no “official” position (“standing”) that entitled them to have their case heard in the court.

SCOTUS held that the defenders weren’t “harmed”, another issue that goes to standing. But I believe that SCOTUS did, in fact, err in holding that the Prop’s defenders didn’t have standing. Their group had expended considerable time and financial resources in getting Prop 8 enacted, and to have two government hacks — Schwarzenegger and Brown — refuse to do their jobs and uphold and defend the law — a function of their office — meant that they (the defenders) suffered tangible injury, which gives them standing.

Further, nowhere in the US or California Constitutions are executives endowed with the power to determine the constitutionality of ANY issue. That’s properly the purview of the appropriate courts. Their job is limited to executing and defending properly-enacted laws, which they clearly failed to do. If this case is an example of the “proper” execution of the politicians’ duties, that raises interesting questions: Why do we even bother having a proposition process at all? Or legislatures? Why don’t we just coronate Caesars and have done with the whole charade?

Additionally, as Kennedy pointed out in his excellent dissent, it’s not at all unusual for interested parties to represent such issues when state officials refuse to do so; that the majority was wrong in applying the “Arizonans” case; and that the states have the right to allow other parties to have standing as the states are the bodies that determine such matters under state law and the California Supreme Court had approved the defenders’ standing.

The initiative process in California was enacted in order to give the people a direct voice in government and allow them recourse if arrogant or corrupt politicians failed to address their concerns. By remanding the case because the politicians failed to defend the law, essentially SCOTUS invalidated the entire referendum process, depriving the people of California of any recourse against officials who refuse to carry out the duties of their office.

th[8]Now, I do think that the defenders made a strategic error in not trying to pursue a Writ of Mandamus while the issue was still at the state level. Such a Mandamus would have forced Schwarzy and Brown to defend the law, or appoint some other “official” government representative or agency to do so, depriving SCOTUS of their escape hatch.

There’s yet another problem with this ruling, too: Prop 8 is unconstitutional on Federal grounds in California, while identical laws on the books in many other states are unchallenged and therefore still constitutional by default. SCOTUS has allowed a double standard to come into existence, where constitutional rights in California are different from every other place in the country.

In the past when the Federal courts have ruled on same-sex marriage cases they’ve held that such state bans are constitutional. When the cases were appealed to SCOTUS, most notably 1972’s Baker v. Nelson, SCOTUS hasn’t granted cert and has let the Circuit decisions stand.

Through their actions in this case, they’ve allowed two definitions of “constitutionality” to come into existence: in the Ninth Circuit and California, the bans are unconstitutional. In the rest of the country, they’re not. That’s an absurd and untenable condition.

Interestingly, there are a couple of other cases working their way up which don’t have this specious “standing” issue in play, particularly Sevcik v. Sandoval, a Nevada case so it’s also in the Ninth Circuit. So, if the Ninth again holds the ban to be unconstitutional, SCOTUS will have to deal with the issue again, and won’t be able to duck the issue over the specious “standing” issue as the state’s officials are actually fulfilling their duties to defend the case.

So this clearly isn’t over yet. Further, there’s going to have to be some kind of resolution as to the inconsistency of the state of the law in different Circuits as to constitutionality. The Constitution demands “equality”, and right now that’s not the case at all.

Instead, we now find ourselves with the issue of constitutionality in this country completely unresolved. This is an absolutely terrible decision, one grown out of cowardice on the part of SCOTUS to actually face and resolve the issue. I give them a big, fat “F”.

© Brian Baker 2013

67 comments on “The Supreme Court Drops The Ball … Again

  1. Buck says:

    So many things to comment on here. So I’ll put my 2 cents in on a couple and come back later.
    1. It seems that every “leader” from governor to POTUS has decided which laws they will enforce and which they won’t.
    2. Segregation was not just addressed to the South but even unto the rest of the country. Now the SCOTUS seems to be sidestepping an argument…How can something be unconstitutional in one part of the country but constitutional in another?
    3. Why does the SCOTUS continue to slough off decisions on “technicalities”? Are they playing politics with the Constitution? i.e. How can a tax that is not a tax, that did not originate in the House be Constitutional?
    or How can failure by the governor to enforce the law render the law unconstitutional?
    How can a state be unconstitutional if its law officers enforce federal law the federal law officers refuse to enforce??

    • BrianR says:

      All great questions, Buck, which shows what a sorry state we’ve devolved to.

      I think SCOTUS keeps resorting to these technicalities because Roberts is, essentially, a coward and a wienie more concerned with his historical “legacy” than in practicing good law. Note that in the “good” decisions he didn’t write the opinions for the Court. Those were written by Scalia, Alito, and Kennedy. He DID write the abortion of a decision in the Obamacare case. He seems to be afraid of being branded as a “conservative”, I guess.

      Yet another great SCOTUS appointment from a “moderate” President, in this case Bush 2.

  2. Roberts started well, but I think the flak he got from the left after Citizens United made him gunshy. He wants to be liked, so he won’t stick his neck out after getting hid peepee smacked.
    I have not read the dissents, but I did hear Brother Levin read some parts and they were spot on. This has not been a stellar few years for the Court.

    • BrianR says:

      Hey, Craw, how ya doin’?

      Yep, I think you probably nailed it on Roberts. He’s a gutless wonder, and a bad match for the Chief Justice job because of it.

      The Kennedy dissent was, indeed, spot on, and blew the majority opinion to pieces, IMO.

      And Levin’s great. I always listen to him if I’m driving around in the evening. Love his show. HE’S who we need as Chief Justice!

  3. gunnyginalaska says:

    Of course the SCOTUS is gutless. Look at how they dodged the bullet with Obama’s birth certificate. While I don’t put stock in it and never really did, the issue should have been examined for the sake of the Constitution and upholding the law of the land. They were afraid of race riots and being called racists, nothing more.

    I wonder if Roberts doesn’t have something in his past that Obama is holding over him courtesy of the NSA/IRS.

    • BrianR says:

      Gunny, I don’t think blackmail’s necessary when a guy doesn’t have any courage of his convictions … IF he even has any convictions in the first place.

      I honestly think Roberts is simply more concerned with how he’s going to be treated by history, and doesn’t want to be known as a “conservative activist” judge. Principles be damned.

      He’s a wienie.

  4. clyde says:

    Excellent post. Given the 9th Circus’ penchant for disaster, the Nevada case will be back before SCOTUS as you have predicted. We see the results of the toxicity in D.C. when the SCOTUS cowers in fear of the left, instead of determining the Constitutionality of issues. One thing about Repub picks for the SC, they ALWAYS leave you guessing which way they’ll go, with FEW exceptions. Hey, Craw, man, HOW THE HELL are you? Any chance you’ll be back out here? Miss ya, man.

    • BrianR says:

      Thanks, Clyde.

      Yep, couldn’t agree more. That’s why they’re called the Ninth Circus. What a bunch of buffoons.

      I also agree that the PSP has a pretty poor record on SCOTUS picks. But here’s a surprise for you: SCALIA actually went along with this decision. WTF? You could have knocked me over with a feather.

      • clyde says:

        I had to admit, this was a disappointment for sure. My guess is there was something there that swayed his decision. Scalia isn’t known for rash judgments.

      • BrianR says:

        Yep. I can’t figure that one out, either. He didn’t write an opinion, so I can’t even speculate.

  5. Grey Neely says:

    I really believe that you have hit upon something Brian (i.e., Roberts is a weinie). But I will go farther. I believe that Roberts has been threatened by the Obama administration in some form or fashion. Perhaps the threat involves Roberts’ life or the lives of his family; but I believe the threat has been made. Whatever the threat is, Roberts is being affected by it in his decisions. Scalia’s “rash judgement” that you mentioned also comes to mind with this idea of threats.

    I don’t believe in coincidences, and these series of “bad judgements” by SCOTUS are leaving me considering the possibility that SCOTUS is “compromised”.

    • BrianR says:

      Um… well….

      Not sure how to respond to that, Grey. I’m not a real big believer in those kinds of conspiracies being carried out in real life.

    • Nee says:

      I can almost get there myself. If I look at everything that has gone on and the level of deceit, and it IS deceit in this WH, who can convince me otherwise? I can’t believe that it’s just a series of unfortunate events where there is zero accountability. It’s criminal, and yet, no one seems to care.

  6. thedrpete says:

    I didn’t leave America, BrianR, but the U.S. Government has. The massive monstrosity — the executive, the legislative, and the judicial branches; the administrative-regulatory bureaucracy and the government-employee unions; the progressive/liberal media, academe, pre-k-through-12 government-operated centers — has committed a painfully-slow-but-inexorable coup. We the People are no longer sovereign, no longer in possession of our unalienable rights from our Creator, mere slaves in the shadows.

    On my way here to New York I spent some time in suburban D.C. There was no housing “bubble” there, no economic downturn. Massive private investment beside massive public works projects. A boom town thriving. Five of the now-richest counties on Planet Earth are now there.

    I’ll leave the North Fork at an eastern tip of Long Island, New York in an hour or so to drive south to home in Tennessee, getting there in time to “celebrate” Independence Day. Along the way I’ll ponder what to do with my flags on that day.

    • BrianR says:

      Actually, I kinda wish the government WOULD leave the country. Instead, it seems to be taking over.

      But I know what you meant.

      You and I have discussed this many times before, and both agree that barring some BIG changes the Fat Lady has sung for this country. We’re devolving into the absolute worst form of Euro-trash “social democracy”, and rapidly going bankrupt while doing so. The worst of all possible worlds.

      The irony is that while we’re doing that, many of the actual European countries themselves are trying to fix their own leaky boats.

  7. Nee says:

    Brian- You hit it. My problem wasn’t the decision necessarily, it was that the process now seems to negate the will of the people whether it goes back to the states or not. I’ve read Kennedy’s dissent and am right there with him. Once you placate a certain group in the name of “upholding the law” how far will it go? It becomes a question of checks and balances that once again will not be enforced. And if you think about who voted against it and who are now for it, it’s just an effing sham.

    I’m still watching the other hand…Fast and Furious, Greengate, Ocare, Benghazi and the NSA. The shit is piled high and they’re nearly buried. They’ve protected Hilary, still have zero accountability and the Pied Piper isn’t going to go after a 29 year old hacker!! But he will congratulate those who uphold his transformation all fucking day long. I’ve not said it, but you know, hitting center mass starts to sound better than this travesty of bullshit we have to deal with.

    • Nee says:

      Legislating from the bench is not acceptable and we see more and more of it. I don’t know if I conveyed what I meant very well…

    • BrianR says:

      Yes, exactly.

      I’m not all that invested in the same-sex marriage issue one way or the other. I don’t approve of it, but there are a LOT of things in this society I don’t approve of, such as all of the leftist agenda. But as long as the people themselves have voted on an issue, I can accept being on the losing side, because first of all that’s how things are SUPPOSED to work in a democracy; and secondly because if the voting mechanism functions properly my side can always try to raise the issue again in the future and maybe win next time.

      But when you have the idiot courts throwing out and invalidating the voting process itself, particularly through a specious device, then democracy itself doesn’t mean anything anymore because in reality it no longer exists. You no longer have “the will of the people”, you have the will of the unelected mandarins in black robes.

      THAT’S what ticks me off about this particular decision.

  8. Buck says:

    Brian R: I forget who said it and have to paraphrase but something like, “Nothing you can think of is so heinous someone would not do it.”
    I believe all politicians are subject to blackmail.
    I also believe all people have at least one skeleton in their closet.
    I also believe the Democrat Party has reduced finding that skeleton down to a fine art.
    Too many politicians run as strong conservatives then flip flop soon after arriving in DC.
    Of course Rubio and Rand come to mind first but there are and have been others.
    And why did McCain and Romney refuse to bring up subjects that would’ve severely damaged Obama’s campaign?
    Why did McCain muzzle Palin?

    • BrianR says:

      Well, you raised several issues, none of which (IMO) have anything to do with conspiracies.

      Yes, many people RUN as conservatives, then seem to flip-flop on arriving in DC. Conspiracy? No, I don’t think so. Politicians lying to get elected, then showing their true colors? Yeah, I think that’s much more likely.

      “And why did McCain and Romney refuse to bring up subjects that would’ve severely damaged Obama’s campaign?” Because they were both knuckleheads who ran piss-poor campaigns.

      “Why did McCain muzzle Palin?” Because he was never any kind of conservative at all, and the only reason she was on the ticket was because it was a desperate attempt by McAmnesty to get SOME kind of voter support in the election. He knew he had none. But he sure as hell didn’t want her actually spouting policy and making promises about things he didn’t personally believe in. And since he’s a leftist troll in the wrong party, that would be just about everything.

      • Exactly. McLame and Romney took it easy on Obama because they are both spineless non-conservatives. Both side with big gummint over the Constitution any day of the week.

  9. CW says:

    Terrific post, Brian. I want to add something (you know me!), but can’t.

    I echo your sentiments to Nee: “…as long as the people themselves have voted on an issue, I can accept being on the losing side, because first of all that’s how things are SUPPOSED to work in a democracy;”

    • BrianR says:

      Why, thank you, Ma’am!

      And it IS unusual that you don’t see something I’ve missed.

      Dang… I musta done good!

  10. Buck says:

    You mention Writ of Mandamus which reminds me.
    Why in the deuce can’t Texas, Arizona and California use mandamus to force the government to secure the border?

    • BrianR says:

      Not a reason in the world I can think of. They damned well should. I think I even mentioned that in one of my essays. If I didn’t, I should have.

      Right on, Buck.

  11. Hardnox says:

    Excellent post and great comments. I don’t have anything to add that hasn’t already been said other than these black robed princes REALLY piss me off.

  12. Buck says:

    another one of those

    • BrianR says:


      … yeah …

    • BrianR says:

      He’s gone now. He wrote a couple more comments that were nothing but a leftist diatribe, the usual drivel in the exact kind of hostile tone we all associate with socialists, and which violate my posted rules.

      I’ve spammed him.

  13. AfterShock says:

    The Law, at every level, is dead Brian,dead as is the constitution for the United states of America. We are entering a time of “mob-rule”. We are all now someones target. When shots are taken and when will be a spin of the roulette wheel. Eventually, the wheel will spin out of control. These are gravely sad times requiring extraordinary measures.

    • BrianR says:

      Shocky, good to see you.

      Sadly, you may well be right. I am not at all confident about the future of this country; as a matter of fact, as I’ve said plainly many times, I’m actually very skeptical about its viability unless there are some RADICAL changes, and soon.

      I’m also not confident that if it does fall apart that some armed revolt will ever take place to set things back on track. We’re more following the path of the Roman Empire than that of our own founding.

      The slight hope I see is that some states are actually taking substantial steps against the federal government. Will it be enough, fast enough? Again, I’m very skeptical.

      “Gravely sad times”… yes. Well said.

  14. Buck says:

    They gotta understand the push come to shove scenario:
    We’re too damned old to run.

  15. Okay bud, I have an assignment for you and the rest of the bunch. I was stumped by a comment on one FB page regarding the Constitution. Article I, Section 10 states that the states cannot accept as tender to repay any debts anything other than gold or silver coins. I have never paid any fees, fines, or taxes with gold or silver, and I don’t know of any entity that has paid a state debt with gold or silver in the past 50+ years. Where have the states gotten any Constitutional authority to accept anything other than gold or silver?
    I shall look forward to that essay.

    • BrianR says:

      Actually, that Section prohibits the states from coining money. Under Art 1, Sec. 8, Congress has the power to “coin money”, and there’s no requirement that it be only gold or silver, hence paper money.

      What the banks used to do prior to that time was issue certificates of their own that were supposedly backed by currency, but it was a very unstable system, as banks would sometimes issue more certificates than they actually had hard currency to back up. The idea was to eliminate anything being represented as legal tender other than the official national currency.

      Bear in mind that the Section says: “No State shall … coin Money; … (or) make any Thing but gold and silver Coin a Tender in Payment of Debts”. And who is legally allowed to make “coin”? Only the central government.

  16. Buck says:

    And the Continental Congress coined money.
    The coins were pewter
    Hence, “Not worth a continental.”

  17. Buck says:

    Two weeks since last comments.
    Time for a new essay.

  18. Buck says:

    Put in your 2 cents on the DOJ, civil rights laws and Zimmerman, maybe…

    • BrianR says:

      Well, thanks for the suggestion.

      I dunno. That case never really interested me that much, and now everyone in the country’s yapping about it. I don’t know what I could possibly say that hasn’t already been said about 100 times by now.

  19. Mrs. AL says:

    Is it just me or does the idea of “same-sex marriage” smack of an oxymoron?

    • BrianR says:


      I’m waiting for people to be able to “marry” their pets.

      Er… make that “companions”.

      Or is it “partners”?

      I just can’t seem to keep up with the slang du jour anymore…

  20. AfterShock says:

    Shameless nigga has new post at own blog

    • BrianR says:

      Having read your essay, I understand your use of “the word”.

      Funny stuff!

      • AfterShock says:

        sorry Brian I shouldn’t have attempted to be so cynically SHOCK-ing on a blog other than my own… 🙂

      • BrianR says:

        Not a prob, Shocky!

        Maybe it’ll prompt readers to check out your place to see why you wrote the “dastardly” word…


        Think about it. If you read “Tom Sawyer”, you see the word “nigger” plenty of times. Are we now supposed to ban classic books, too?

  21. clyde says:

    Got a fresh one up about our pal, Reach Across Johnny. Swing by if you get chance.

  22. Buck says:

    Droppoed by After Shock’s address.
    Would’ve commented but too much BS to get registered…

  23. Buck says:

    Nope. Still wants me to “log in” and doesn’t accept my log in…

  24. Buck says:

    …And on another note.
    Looks like the Patriots’ Hernandez will be going down for a long time.
    Guess we’ll find out if he’s a tight end or wide receiver……….

  25. jevica says:


    Ever since the so called “right to privacy” From Griswold v CT [and before during FDR] the SCOTUS has gone off the rails cases. Since the Court took it upon themselves to decide what the Constitution means [and everyone lets them do it]. We have three co-equal branches of government, do they [the other two] also get a say in what is Constitutional or not?

    Once Congress passes a law you can’t just not enforce parts of it cause you don’t like them, veto it or enforce it. Don’t pass the buck to the SCOTUS [as in Bush 43] cause you don’t want to take the heat.

    Brian they are just “fake scandals” as BHO says, could you imagine if POTUS was from the PSP?

    So unless the someone in the state gov’t takes on the case, the people are shafted. is that how it works now.

    BTW Mark Levin is great, I love to listen to him.

    Good posts, as usual.

    TH is bad.

    • BrianR says:

      Thanks for the kind words, Jev.

      Yeah, Levin is the best. I really enjoy his radio show when I’m driving at that time of the evening.

  26. jevica says:


    How about this-

    “DC circuit slaps Obama administration for refusing to follow statutory law”

    The DC Circuit Court of Appeals ruled yesterday that the Obama administration cannot ignore statutory law that requires the completion of the licensing process for the controversial nuclear storage site in Nevada, including a final decision on approval. The Obama administration had avoided complying with the federal law that designated Yucca Mountain as a repository for nuclear waste

    ” The Obama administration has decided to ignore statutory language in the Affordable Care Act in order to delay enforcement of the employer mandate, out-of-pocket caps on insurance, and a few other aspects of the law it champions to this day. The Yucca Mountain case provides a similar scenario, and at least at the moment, legal precedent that would likely apply to an appeal of the waivers unilaterally imposed by President Obama.

    • BrianR says:

      Yeah, it’ll be interesting to see how these court cases advance. Obozo has a tendency to just ignore rulings he doesn’t like. He was directed YEARS ago by a federal appellate court to start issuing permits for offshore drilling, and I don’t think he’s complied even yet.

  27. jevica says:


    Just read about this Missouri Rodeo Clown with the BHO mask, ” It is as though President Obama is a messiah or is a god and this little thing that happened at the Missouri State Fair is a defamation, a denunciation, almost a religious sacrilege that took place.”

    Wouldn’t it be great if the media would spend as much time on Obama’s failed health care and administration as they are on the rodeo clown story?

    “We have an entire Democrat political party and the American left which think that they are so damn special that they cannot be mocked, they cannot be made fun of.”

    I can’t believe this story are they out of their minds, [YES].

    • BrianR says:

      Yeah, as always, massive leftist hypocrisy.

      Remember all the doctored posters and face masks of Bush? Where was all that outrage then?

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