Jan
06
2014

USSC rebukes 10th Circuit hyper-partisanship on Utah same-sex marriage decision.

Quick background: a federal judge in Utah recently tossed that state’s same-sex marriage ban (which is, by the way, based off of a state constitutional amendment*); the judge also then refused to put a stay on the decision until the 10th Circuit Court of Appeals in Denver had a look at it.  At that point the screaming reached the point where Justice Sonia Sotomayor (who oversees requests from the 10th Circuit) noticed; the Supreme Court then turned around and instituted said stay on the decision.  It now goes to the Court of Appeals’; presumably, it will then proceed to the Supreme Court with all due speed.

I take Ed Morrissey’s position on this:

This may well be a rebuke from the top court to the rest of the federal judiciary about refusing stays for obviously activist decisions. I’m not sure it says anything more than that.

I don’t doubt that Justice Sotomayor is pro-SSM, given that she’s a liberal justice appointed by a Democrat. But there has been mutterings on the Left side of the court for some time now that they are perhaps being expected to cut too many Gordian Knots (and in the process, rattle the cages of all those awful right-wingers who get aggravated at the judiciary doing the legislature’s job**); and smacking down too-eager lower courts is one way to put some brakes on the process. The Tenth Circuit certainly will be seen as an unsubtle hint: I actually expect that the Appeals court will not overturn the decision, but I also expect that the court will put another stay on the decision until the Supreme Court chimes in.  Nobody likes to be called incompetent by their superiors in public.

Moe Lane

*That is, in fact, very important. I am a same-sex marriage advocate who hates the idea of fighting this out in the courts at the best of times; the courts mucking about with actual state constitutions gives me cold shivers.

**:waving: Hi.

2 Comments

  • Luke says:

    Here the evil of “precedent” comes into play. Every usurpation lays the groundwork for the next.
    .
    When Clinton found a friendly federal judge to rule that Idaho’s Constitution was superseded by newly-minted federal regulations, you didn’t really think it was going to stop at water rights in a largely unpopulated state, did you?

    • Luke says:

      Actually, I should clarify, because the above lets Republicans off the hook.
      The judge was appointed by Clinton, Clinton’s appointed and confirmed bureaucracy started the suit, and cherry-picked the judge to hear it.
      But the suit was continued and won by George W. Bush’s appointed and confirmed bureaucracy.
      .
      All three branches of the federal government, under both parties, colluding to deliberately subvert the law and increase the power of the federal government.

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