Several legal analysts say the issue needs clarification because it comes up all the time.
Courtney Joslin, acting professor of law at UC Davis, says the US Supreme Court has never directly decided whether the official proponents of an initiative necessarily have standing to defend a measure if no public official is willing to do so.
Chris Dusseault, a law partner at the firm of Gibson, Dunn and Crutcher who attended the hearing, says he was impressed with how well prepared the California justices were, including Goodwin Liu, who was appointed just last week by Gov. Jerry Brown.
“It was clear that they had read all the briefs very carefully and knew the law. They asked very pointed questions on both sides so both had a great opportunity to make their arguments,” says Dusseault.
The San Diego Gay and Lesbian News (SDGLN) reported that Charles J. Cooper, the attorney for ProtectMarriage, was challenged on whether he could prove where there was tangible injury to the Prop. 8 proponents. It also reported that one justice dismissed Mr. Cooper’s citing of case law as having nothing to do with the initiative process.
SDGLN said Theodore Olson, another partner at Gibson, Dunn and Crutcher who is the attorney for the American Foundation for Equal Rights, also came under harsh questioning. It said both Mr. Olson, a former US solicitor general, and Cooper fidgeted nervously while being questioned by the justices.