Update, 11:25 a.m.: This might be a hedge from the Supremes. Stay tuned for live updates here.
Update, 10:41 a.m. Eastern: SCOTUSblog is reporting that Prop 8 is "unlikely to be upheld." It brings us back to the "standing" rule, of whether or not a private citizens and defend public law. This could be big — and we'll be updating live:
Original post: No more politicians switching sides. No more talk of what the polls mean. The long awaited gay marriage arguments at the Supreme Court have arrived, and the stakes are high for the most important civil rights cases before the nation's highest court in years. Here's a guide to keeping track of the proceedings, beginning with today's oral arguments on Hollingsworth v. Perry (aka Proposition 8) with expectations high and low, conclusions fast and slow, on social media and by way of a drinking game — with coffee, but still.
The Instant Analysis
Oh, the Supreme Court. It's still one of the last bastions of democracy to embrace the slow drip of breaking news. It's getting there, but "live" coverage of oral arguments is a relative term, because in an age of second-by-second reactions and receiving news on demand, most of the world is shut out from the proceedings. Cameras in the Court, once such a no-no that the question prompted an actual Supreme Court justice to say "over my dead body," were rejected by the Supremes again last month. And there are no electronic devices allowed inside either, so even the most eager of Supreme Court reporters and gay-marriage supporters will have to run outside to tweet the news of What Kennedy Said at some point later this morning. Oral arguments in Prop 8 are expected to start around 10:15 a.m. and last for about an hour or so, depending on how long the announcement of other rulings run over before. So until about 11:30 Eastern, it's a waiting game, with no shortage of pundits making (perhaps fale) predictions until the 400 people with a seat inside start pouring out. C-SPAN has a nice Twitter list if you really can't wait, but here's where to go from there:
The Audio: The Supreme Court has promised, for the first time since its hearings on the Affordable Care Act last June, that same-day audio will be available on its website by 1 p.m. Eastern today. Tomorrow, when the court hears the arguments on DOMA, the arguments should be on the site by 2 p.m. (Rulings on both cases aren't actually expected until toward the end of the Court's term sometime in June.)
The Transcript: The language of the proceedings should be available about an hour after the audio — including the all-important questions from justices that may reveal their leanings.
The Top Tweeter: Jeffrey Toobin. Fine, he severely underestimated Solicitor General Don Verilli's oral arguments in that Obamacare case. But he's still the LeBron James of legal decisions. Though, there are a bevy of top newspaper reporters on deadline who might also be good to follow.
The SCOTUS Drinking Game
With a vacuum of information until the transcripts and audio comes out, you're going to hear a lot of repeated phrases and people looking for keywords — the language from the bench is thought to reveal a look inside the ruling. Here are the big words of the week, along with a little drinking fun. (Note: We recommend coffee this early in the morning, although the likelihood of each of these words actually appearing again — and with the same impact as they have in previous gay marriage cases — is not the most dangerous drinking game ever, especially for all those folks out there in the cold in Washington, D.C.)
"Standing" from Roberts: The question here — and of particular interest to the tea-leaf readers concerned with the position of Chief Justice Roberts — is whether the Court will discuss allowing private citizens to defend their case when the state is not defending it. Think of it this way: If a party doesn't have any "standing" (ProtectMarriage, in the case of the defenders of Prop 8), then it doesn't have the right to defend its case to the Supreme Court, and boom — the Supreme Court cannot address the rest of the case. No gay marriage bans overturned, no sweeping change. Usually, as The San Francisco Chronicle's Bob Egelko points out, federal courts don't allow private citizens to defend state/public laws, but in California the state's Supreme Court and Ninth Circuit both agreed to allow ProtectMarriage to defend its case in the Prop 8 appeal. "The California Supreme Court said yes, arguing that the power to 'propose and enact' has no meaning without the power to 'defend.' And, because California has a liberal and expansive initiative proposal process, any other ruling would do violence to long-standing public policy of the state," writes Towleroad's Ari Ezra Waldman.
Drinking-Game Rule: For any permutation of "standing" in the Court audio, from Roberts or otherwise; or and adaptation of "Why the Supreme Court Might Not..." in a speculative headline, take four drinks. If the Court doesn't allow ProtectMarriage to argue its case and successfully trolls the United States of America, take the day off, and flip on Beaches with a bottle of rum.
"Dignity" and "animus" and "demean" for Kennedy: Unless there's a magic swing vote from Justice Roberts, the Court's Prop 8 case and its Defense of Marriage Act hearings tomorrow will be split right down the middle — again. The narrative being spun by Court watchers is that the decision, like several important Court rulings on gay marriage written by him before, will hinge on Justice Kennedy. So everyone's listening to see if he'll repeat key phrases from those decision. Including Slate's Emily Bazelon:
Does he use the word “dignity” in relation to gay rights, as he did in his famous opinion striking down state sodomy laws in 2003? What about the word “animus,” which he used to explain, in 1996, why he thought Colorado voters were wrong—constitutionally wrong—to prevent cities and towns from passing ordinances protecting gay people against discrimination?
And here's more from Greg Stohr at the ever-important SCOTUSblog:
As is often the case, Justice Anthony Kennedy’s vote looms large. Kennedy has championed gay rights before, most recently writing the 2003 decision that said states can’t criminalize gay sex acts. Overturning the convictions of two men in Texas, he wrote that “the state cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Even so, Kennedy made clear he wasn’t passing judgment on gay marriage.
Drinking-Game Rule: Have a drink every time you hear "dignity" from Kennedy. Two if he gets Ginsburg to say "animus." Direct references to that 2003 sodomy case, Lawrence v. Texas, get a small swig.
"Immoral" and the sweeping comparisons for Scalia: Say what you want about Justice Scalia, but the guy is a masterful troll — he was last seen discussing gay marriage in public at Princeton by way of an analogy about murder, calling gay sex "immoral" once again. (Mother Jones has a roundup of some of the more absurd things Scalia has said about gay marriage on the record.) And he got a rise out of Justice Sotomayor during the Court's hearing on voting rights this month. Also: oath, schmoath.
Drinking-Game Rule: Every headline or snarky tweet that states "Scalia compares gay marriage to [insert heinous act here]," have a healthy swig. If you get to the audio, you're on your own. If you parse the transcripts an hour later, good luck. Let's just say your health/caffeine intake will depend on these proceedings being limited to just the one hour.
The Sentimental Preparations
Think of all the California gay couples you know who might get to marry should the Supreme Court passes this. Think about all the states that could be instantly affected. Think of the mysterious gay NFL player who is apparently considering coming out. Think of the amazing parties and nights of drinking you'll be invited to if the Supreme Court backs gay marriage in some sweeping capacity — the decision is slated to be revealed during Gay Pride Month, for crying out loud. Or think of the kids who need "It Gets Better" videos, and the message this could send. Or you could just read our Richard Lawson's essay.
Oh, right. There are opponents, too. Seeing gay people told they aren't fit to marry because it would "undercut the idea that procreation is intrinsically connected to marriage" isn't exactly the type of thing that brings immediate joy, but the Court could surprise everyone, and the letter of the law has some serious lawyers on its side, too — despite the high-powered Bush v. Gore enemies turned attorney frenemies on behalf of the defendants trying to overturn the Prop 8 ban on gay marriage. And, you know, to each his own...
The Tempered Expectations
Remember what happened during the healthcare hearing last summer? When everyone, including Toobin, thought mustachioed Solicitor General Donald Verilli bombed in oral arguments, but then the Supreme Court sided with Obamacare anyway? Again: Beware the tea-leaf reading, because the Supreme Court can always surprise anybody, even if public opinion says gay marriage is no longer a fringe civil rights issue but a majority cause. We'll know more in June, and later today. Stay tuned, and try to stay sober.