Whatever else I may have said before about the chances of the California Supreme Court striking down Prop 8, I think the Iowa case changes everything.
The California Supremes don’t act like you’d expect Supreme Court Justices to act. They are in far less of a bubble of than their counterparts in Washington, D.C. They don’t live or work in Sacramento (the Supreme Court building there is largely ceremonial). They work in San Francisco, and, through their actions, if not their limited out of Court words, see themselves as important players in the government.
I think it would shake the self-image of at least a couple of them to be seen going backwards, especially against a trend set by a state like Iowa. (New England just doesn’t do the same thing.)
I wonder if this doesn’t cause Kennard and George to go back to where they were in the In re Marriage cases. Especially George who definitely seems himself as playing a historical role.
They can always call for supplemental oral argument. I’m not sure I’m ready to say they will strike 8, but I’d say that more dithering over that decision is sure to come.