Professor DAVID LEVINE (U.C. Hastings College of Law): “This is like going to Disneyland for legal scholars.”  NPR

Oral arguments opened today in the federal court challenge to California’s gay marriage ban. This is the first federal question challenge to the validity of gay marriage bans. So yeah, this is pretty big, as this one is expected to wend its way to SCOTUS. Last week, I was pretty excited to read that US District Judge Vaughn Walker was going to allow the arguments to be streamed. But alas, SCOTUS has since decided that whether or not the arguments can be streamed is its decision. Which it hasn’t given us yet, but promises to have by Wednesday. So, until then, we have just the retelling by various news sources.

How nerdy is it that I thought of those links as spoilers?

[EDIT: UPDATE – SCOTUS has weighed in on the YouTube issue; new post up here]

Now granted, not everyone is a con law nerd. But this case really REALLY has a lot of interesting issues. And I would have expected that the opening arguments would have been exceptionally stellar. AND would have given us a roadmap on how the two sides to this issue intend to lay their respective Constitutional groundwork.

And people – oral arguments are so cool. No really. In my opinion, it is the most exciting part of the process. I think that most people think that the only “exciting” lawyering is trial level work, and that, generally speaking, “trial work” means harassing witnesses, ‘gotcha’ moments, strange rhyme schemes, etc. But this, in my opinion, isn’t the best part. Generally speaking, at a trial court level, people will try to win over the judge on questions of law and the finder of fact (whether it is a jury or the judge sitting as fact-finder) on questions of fact. I have notice that most tv shows portray trials as mostly questions of fact, where the law questions are resolved via tense motions and in camera arguments. I don’t know – maybe it actually is that way in criminal work, which would seem to involve more questions of admissibility, but in civil cases it doesn’t really work that way. I think a lot of how civil cases are handled depends on your jurisdiction’s approach to summary judgment proceedings – but that is a discussion for another day.

My point, which I lost somewhere, was that oral arguments are really where you can see a lawyer work. And while they certainly are “exciting” at a trial level, I am going to try to take this opportunity to sell you on the joy and sexiness of appellate work. Trial work can be very interesting, but nowhere near the jurisprudential ironman challenge that is appellate work. Imagine a trial – just like what you see on your average lawyer show. Now take away the jury, the parties, the police officers, the witnesses, the evidence, and the criminals and you’ve got appellate lawyering! What, I ask you, is more exciting that a room empty of everything but lawyers, judges, and clerks?

NOTHING. NOTHING is more exciting. Appellate arguments are legal discourse in its pure, distilled form. Like that blue stuff that the Bene Gesserits drink in Dune.

If you would like to hear some SCOTUS orals, you can peruse some of the “classics” at



  1. Gogo Boots said,

    January 12, 2010 at 2:28 am

    Keeping my eyes and ears wide open!

  2. Laci the Dog said,

    January 12, 2010 at 7:51 am

    Why do I have this feeling they will do the wrong thing here?

    If they can read Self-defence into the Second Amendment, they should be able to read a right for gay marriage as well. Not to mention, people should shut up about Roe v. Wade. Sure, that was decided on a bizarre reasoning, but so was Heller. Scalia has to shut his mouth about Roe if he can come up with Heller.

    So, Gay marriage has to be a right! It’s got to be in there somewhere!

    I mean why should anyone be denied the benefits of marriage based on some silly concept about sexual preference????? It’s about property.

    And, Doesn’t divorce make a mockery of the institution of marriage? So, why not do away with divorce.

    Don’t forget dead beat dads while we’re at it. Why should some clown bring kids into the world if he can’t raise them?

  3. southern female lawyer said,

    January 12, 2010 at 12:20 pm

    Laci – it makes me a little nervous, but this was a long time coming. The approach in situations like this is to wait until you have the “perfect” case. Preferably one that has very clear cut legal issues and the facts can show a wide array of damages. In this case, City of San Francisco was joined as a plaintiff, and the thinking is that SF can show statistics for damage to it citizens. I still am not really sure why Boies and Olson opposed Lambda Legal, ACLU, and NCLR’s petition to join as plaintiffs. If anyone has any thoughts on this, I would like to hear them.

    I know that a lot of folks still think SCOTUS isn’t ready to hear this. But I believe the thinking is that by the time this case would get there, the Court may have one or two new justices. Which may be the case, but SCOTUS isn’t likely to lose any of the Federalist Justices any time soon.

    But anyhow, yes, it is a big case. I feel confident, however, with Boies and Olson at the helm. Like our mando player says to me before we play the musics, ‘Don’t eff up, slut.’

  4. mike w. said,

    January 12, 2010 at 1:16 pm

    “Imagine a trial – just like what you see on your average lawyer show.”

    Im always amazed at how unbelievably inaccurate those shows are. They do and say so many things that you cannot do in a courtroom.

  5. Laci the Dog said,

    January 12, 2010 at 4:31 pm

    Please, please, I want five new Justices on the court (and not a replacement for J. Stevens who I want to live to be 1000).

  6. southern female lawyer said,

    January 12, 2010 at 5:23 pm

    Hee – I hear you. I miss SDO more and more every year. There was a lot of speculation over JPS’s hiring of clerks this year (see here:, but there is still no actual confirmation as to his plans. My thoughts are that he is considering it, but waiting to see what happens with RBG first.

  7. Peter said,

    January 12, 2010 at 6:29 pm

    As a (lapsed) Catholic, I’ve always been amused by the Jesus People’s insistence that marriage is a sacrament, which, IIRC, was an innovation of Innocent III (1198-1216). These are the same sort of folks who not infrequently have links that claim Catholicism is some kind of cult.

    Since two of the major traditions we hail from, Roman and Germanic, regard marriage as a legal contract, I hope that the litigators can, if nothing else, manage to strip away the religious argument.

    And Laci, since we all have a Right to exist, we all have the Right to defend that Right, no matter the tool used. That Parliament legislated that away is more a reflection of the UK, as opposed to us gun-obssessed Americans.

    And despite the, um, unusual way that Roe was decided, nobody has any business telling anyone what they can or cannot do with their own body. I’m hoping that the McDonald case (that the 2nd Amendment applies to the States via the 14th via P&I (?)) will eventually lead to a reaffirmation of Roe that removes the criticism about it having been made up out of whole cloth.

  8. Laci the Dog said,

    January 13, 2010 at 3:18 pm

    If “we all have a Right to exist” then deadly force is the last method of choice for self-defence in preference for non-lethal forms. Don’t defend firearms as a method of choice for self-defence if that is your attitude. Unless you enjoy neing a hypocrite.

    Roe can be justified on several grounds.

    As for JPS, I agree that he could hire loads of law clerks if he wanted them. I am hoping he outlasts his predecessor. If not, I hope that a successor worthy of WOD and JPS can be found.

  9. Peter said,

    January 13, 2010 at 9:35 pm

    Laci: if there are other options than deadly force, then I’m all for them. Running away comes immediately to mind. Sometimes that’s not an option. I hope to never be put in that situation, and I hope the same for you.

    I also hope that Roe can be justified in such a way that nobody questions it or the way that the decision is reached. Long past time for this to be settled.

  10. Laci the Dog said,

    January 14, 2010 at 3:49 pm

    Roe v. Wade was poorly written and can be justified under a vast amount of other reasons other than the one cited, Heller was a complete fabrication. I won’t clog up SFL’s blog with my reasoning, but you can read more than enough of my posts on the topic. I would request that you not clog it up as well.

    I can take care of myself without recourse to a firearm.

  11. mike w. said,

    January 14, 2010 at 7:58 pm

    I can take care of myself without recourse to a firearm.

    Fine, but don’t advocate that others be bound by the same choice. I’ll keep my firearms as a means of self-defense until something better is invented.

    Also, of course there are options other than deadly force. Deadly force is to be used ONLY as a last resort.

  12. Peter said,

    January 15, 2010 at 1:12 am

    Laci: Heller was a complete fabrication.

    Well, that explains a few things. Sure it was, Laci. The years before the Constitutional Convention (everything from the English Civil War forward), the document itself, the jurisprudence for the first hundred years of the Republic, all made up. Uh-huh.

  13. mike w. said,

    January 15, 2010 at 11:26 am

    Pete – If Laci says it then it MUST be true, facts be damned.

  14. August 19, 2011 at 6:44 pm

    Cool story it is actually. My friend has been awaiting for this tips.

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