This speculation/activist view of the court comes from our ol’ two step partner Maggie Gallagher:
“How could Judge Walker exhibit such gross bias and deliver such an injudicious opinion? The answer appears to be, in part, that it was his swan song. He’ll leave the bench famous, a hero in his hometown, and a hot commodity in whatever private venture he moves into.
Compare that to where Judge Walker would be if he had done what a lower level federal judge probably should have done: found that Baker v. Nelson is binding precedent, even if he also felt compelled to state why he believed it should be overturned by the Supreme Court.”
Judge Walker’s Swan Song [NRO]
Right. Because that’s exactly the principle in which Judge Walker crafted his 146 page decision: Fame. Instant Celebrity. A thirst for his 15 minutes. In fact, didn’t he actually study at the Kim Kardashian School of Law?
Oh, and as for Baker v. Nelson (as much as we’d like to continue talking about reality TV instead): These social conservatives really need to stop acting like that case went completely unacknowledged at trial! Because Walker quite pointedly brought up that 1972 case (which SCOTUS dismissed with a one-sentence “for want of a substantial federal question” order), leading Ted Olson to even more pointedly explain why the current matter before the court was/is different:
THE COURT: Well, now, the Supreme Court in the Baker vs. Nelson case, decided that the issue which we are confronted with here was not ripe for the Supreme Court to weigh in on. That was 1972. What’s happened in the 38 years since 1972?
MR. OLSON: Well, a great deal has happened. Among the things that have happened is the Romer case. Among the things that have happened is the Lawrence vs. Texas case. You know what those cases involve. A lot of other things have happened. Changes in the ballot propositions. California has adopted something completely different than the state — I guess it was Minnesota or Michigan, involved in that case. So there are a lot of factual situations that are different. This case is very different.
And, by the way, the Supreme Court rejected the opportunity to take a miscegenation case. Now, I think it was — Dr. Cott testified to this. I think it was 1955. And then they took the case, the Loving case, in 1967.
CONTD: Closing Arguments [AFER]
As Olson aptly mentioned: The reality of both the world and the law has greatly changed since 1972. Romer v. Evans. Lawrence v. Texas. DOMA and anti-LGBT ballot initiatives, which while anti-equality, certainly raise new legal questions about the constitutionality of bias that did not exist in 1972. Plus the undeniable reality that is five U.S. states and one jurisdiction in our nation’s capital with equality, as well as the many other countries with marriage equality abroad. Oh, and the civil unions and domestic partnerships that are spread all over, including in California.
Baker would only be binding if the current court was deciding the precise issue that it examined almost four decades ago. But things have undeniably changed, regardless of how much the Maggie Gallaghers of the world think the Earth’s trajectory is dependent on their team’s heels alone!