After Proposition 8 Oral Arguments, Cautious Analysis From Correspondents

By Alex Weprin 

Today the Supreme Court held oral arguments regarding the future of California’s Proposition 8, which made gay marriage illegal in the state. Tomorrow the court will hear another case related to gay marriage, as it responds to questions of the constitutionality of the Defense of Marriage Act.

Cable news coverage of the arguments looked very similar to last year’s arguments regarding the constitutionality of President Obama’s healthcare bill. In content, however, there was a difference in tone. Rightly or wrongly, the preliminary analysis from reporters becomes news in of itself, and this time around caveats were the name of the game.

NBC News law and justice correspondent Pete Williams last year said that the health care law was “in trouble,” and that it was “very doubtful” that the Supreme Court would find the healthcare law constitutional. He did include caveats in his analysis, but his comments (along with those from fellow court-watcher Jeffrey Toobin) ended up dominating the news cycle for over a day, sparking multiple segments on Fox News and CNN, in addition to MSNBC and NBC News.

Ultimately, of course the bulk of the law was upheld (although that day’s reporting had its own issues).

Today, Williams was much more reserved in his predictions, noting that it appears unlikely that the court will overturn Prop 8 outright, and that the court may dismiss the case outright:

You put that all together, Thomas, and that’s why I say I don’t think the supreme court is prepared–and, again, I have to just pause here for a second and give the caveat–that this is right off the top of the notebook. The justices have a long way to go before they write their decision. It’s always very risky to make an assessment based solely on oral argument. Having said that, I think the most that the same-sex couples’ advocates can hope for is a decision that basically finds some way to strike prop 8 down without having any effect beyond California.

CNN’s legal eagle Jeffrey Toobin also began his analysis with a caveat:

This was a deeply divided Supreme Court and a court that seemed almost to be groping for an answer here. I’m now not in the business of making predictions, but I think it is even hard he to predict the result of this case after hearing this argument.