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On Wednesday, August 4, most LGBT people hoped that U.S. District Court Judge Vaughn Walker’s decision striking down Proposition 8 would be put in effect immediately. As detailed in my article on “Processing the Proposition’s Process,” though, Walker has put a temporary hold on the entry of the judgment until he can decide whether to stay the case pending appeal to the U.S. Court of Appeals for the Ninth Circuit.
Although the initial thought might be that denying the stay would be great because it means the ruling would go into effect immediately, a further look at the situation reveals that not necessarily to be so.
Rick Hasen, a law professor at Loyola Law School in Los Angeles, makes the case for “Why It Might Be Rational For Judge Walker to Stay His Own Ruling in the Prop. 8 Case” at his Election Law Blog.
As with most things, it comes down to Justice Anthony Kennedy. In this case, not only is Kennedy the expected key vote of the nine current justices on the Supreme Court, but he also is the justice responsible for handling motions to the court that come from the Ninth Circuit.
After discussing how the request for a stay can be appealed up to both the Ninth Circuit and the Supreme Court (a process I detail in my “Processing” article), Hasen concludes:
[I]f Judge Walker grants a stay pending appeal (meaning no change in the marriage rules pending appeal), the the appeal proceeds on a more leisurely pace. It will be months before the record is completed and briefs are due. Barring expedition, it will be more months before the case goes to a Ninth Circuit [panel for argument]. Depending upon what that panel does, there’s a fair chance for a rehearing en banc. Eventually, this means a cert. petition filed before the Supreme Court. This gives Justice Kennedy more time for reflection. He could be more amenable to upholding the decision under this more leisurely scenario. (The risk (or opportunity) of the longer schedule, of course, is that there is some other personnel change on the Court that affects how the Supreme Court might handle the case.)
In short, granting the stay will lower the temperature of this case, and that might be the best way for the judge to get an affirmance down the line.
What both Hasen and I leave out in our pieces about the process is an unlikely — but technically possible — additional step in the consideration of the case at the Ninth Circuit that I left out for space and imagine Hasen did as well.
Because of the “limited en banc” process that the Ninth Circuit has adopted of having 11 of the more than 25 judges in the circuit serve as the en banc panel, there remains — technically — the possibility of a full en banc consisderation, as was considered by the court in fall 2009 in an unrelated case (detailed and discussed by George Washington University law professor Orin Kerr). As Judge Alex Kozinski, the chief judge of the Ninth Circuit explained in 2003:
In the unlikely event that six judges might command a majority of an 11-judge en banc court and express a view inconsistent with the views of the other 21 active judges on the court, the circuit rules provide for review by the full court upon the request of any judge. This has never happened since the limited en banc rule was adopted by the Court in 1980.
So, there’s that, too.