Prop 8 Hearing, Supreme Court Bucks

Once again, an issue of national importance has focus media attention on the Supreme Court, and once again the nine justices are defiant to the digital age.

This morning’s hearing over the constitutionality of Proposition 8, in a case financed by Hollywood, Wall Street and other political activists, was largely free of real-time Tweets (only pads and pens allowed in the chamber), live audio (recordings came after a 1 1/2 hour delay) and certainly cameras (never allowed, in any form). There was a tinge of TMZ-esque paparazzi, but that came via a courtroom artist’s sketch of Rob Reiner, a leader of the foundation that is challenging California’s ban on same-sex marriage, sitting in the Supreme Court cafeteria waiting for the hearing to start.

Instead, the media is left reading the tea leaves, perhaps like never before. An initial Tweet from the great SCOTUSBlog, as the oral arguments were still going on, slipped through the view that Prop 8 “was unlikely to be upheld.” The site tempered the enthusiasm of same-sex marriage advocates about 45 minutes later, after the session had ended, by reporting that there weren’t enough votes for a sweeping ruling for marriage equality, and later that the high court “won’t uphold or strike down” Prop 8 because Justice Anthony Kennedy thought it was “too soon to rule.” “We have five years of information to weigh against 2,000 years of history or more,” he said at one point.

That was in line with many pundits as they came out of the courtroom, who seemed to point to the justices either deciding that the proponents of the initiative didn’t have standing to defend it, or that the case should be dismissed altogether. Either scenario would allow for same-sex marriage in California, but not nationwide, because of lower court rulings finding it unconstitutional. But it would be somewhat of a letdown given the buildup across all media in the past few days, with much of the coverage of politicians evolving, or of  Facebook users changing their profiles. Screenwriter Dustin Lance Black, who was at the hearing, said he was “moved to tears” several times and that “history has been made.”

All pointed to how inevitable a nationwide right to same-sex marriage seemed to be, with all that was left to finish the story being a historic high court ruling. There’s little doubt from a P.R. standpoint that the pro-same-sex marriage side is benefiting from the penchant for breaking news, the odd couple teaming of Ted Olson and David Boies to challenge Prop 8 and the reluctance of the attorney for the other side, Charles Cooper, to have much of a public profile at all.

But as we learned today, the hearing offered no certainties of direction. Listening to the audio of the court’s hearing, the justices made some strong statements, but also plenty of nuance and a bit of confusion, something that is hard to convey in 140 characters, maybe even 140 words. CNN’s Jeffrey Toobin, who was certain that healthcare reform was dead after last year’s marathon hearings, cautioned against bold predictions this time around. The network itself had a hodge podge of moments to choose from when the audio of the hearings became available, and they chose a rather humorous exchange between Justice Elena Kagan and Cooper over whether any member of a couple over 55 is likely to be fertile. Justice Antonin Scalia rather wryly brought up Strom Thurmond, to much laughter, before the argument got back on point.

It’s hard to see the Supreme Court holding out for many more generations without cameras or just a PDA allowed in their chambers, nor should there be, but for now it is a somewhat refreshing reminder to not jump to conclusions. Even though the news hole demands immediate results, the justices seem hellbent on making us all wait or admitting we’re in the dark. Pressed several times at a post-hearing press conference about how he thought the court was leaning, Olson’s takeaway didn’t offer much in the way of resolution and was more a call for relief: “I have no idea.”

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