Today’s Prop 8 Decision – Increasing the Chances of Mootness Before the Supreme Court Gets the Case

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Back in August, I wrote that the Prop 8 case might never get decided by the Supreme Court.  The theory was that by the time the Supreme Court could hear and decide the case, the California voters would vote to repeal Prop 8.  As I understand things, advocacy groups in California are working to get a repeal on the ballot for November 2012 with the thinking being that demographics will be more favorable (i.e., younger people become voters, older people die off, attitudes generally become more tolerant, etc.).

The Ninth Circuit’s expedited hearing in December put a bit of a kink in my theory, but today the chances of the case being mooted increased by a lot.  The Ninth Circuit decided to punt the case . . . for now.  In its decision, the Ninth Circuit certified the question of standing to the California Supreme Court.  I don’t have any information about the general timeline for questions certified to the California Supreme Court, but there’s no arguing that this doesn’t delay the case, possibly substantially.

Now, the following things must happen before the case is decided by the Supreme Court:

  • Briefing, argument, and decision by the California Supreme Court.
  • Decision by the Ninth Circuit (with possible re-briefing and re-argument depending on what the California Supreme Court says).
  • Certiori briefing and decision by the Supreme Court.
  • Merits briefing, argument, and decision by the Supreme Court.

Under my theory that Prop 8 will likely be repealed by California voters, this all has to happen before November 2012, just 22 months from now.  (And my list of things that have to occur doesn’t even include a possible en banc process in the Ninth Circuit.)

I just can’t see the wheels of justice moving this quickly, so I’m sticking with my original post – this case will probably be mooted.

Cross-posted at the Faculty Lounge blog.

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