Everyone has been a bit nervous about the fact that California Supreme Court Justice Kennard did not sign the order for the CASC to take jurisdiction of the Prop 8 challenge.  Here is a supposition from Leonard Link that may put some minds at ease.

Justice Kennard was part of the 4-3 majority in the Marriage Cases decision from May 15, and I was concerned that without her vote it would be difficult to prevail here.

I speculated that either she did not see much merit in the petitions, or that she was unhappy with the form in which the matter was presented.

A long-time observer of the court has now told me to set aside my fears.  Not that anyone knows how any judge will vote on the merits of the case, but, my source tells me, Justice Kennard has a long-standing objection to the court by-passing the normal litigation process in which a case percolates through the state court system and then ends up before the Supreme Court.  She believes the entire process works better when the parties have had more time to develop their written and oral arguments, to test them out before a trial judge and an intermediate appellate court, and then finally to go up to the Supreme Court with a fully developed approach to the issues.  So it is more likely than not that she did not sign the order because she disagreed with the expedited handling and thought the challengers should be starting in the Superior Court to argue their challenge.

So if Leonard Link’s source is correct, we should not draw any conclusions about how Justice Kennard might rule in this case from what may simply be her making a statement about procedure that is independent of the case itself.

Laurel Ramseyer

Laurel Ramseyer