Did Justice Kennedy plan to write a sweeping Perry opinion until nervous liberal justices yanked the standing rug from under him? There’s been speculation to that effect ever since the Court’s big day, but now Roger Parloff of Fortune offers circumstantial evidence in the form of passages from Kennedy’s Windsor opinion (and Scalia’s dissent). Excerpt:
…it’s possible, and I think likely, that when Kennedy realized he wasn’t going to get to write an opinion on the merits in Perry he at least imported into the DOMA ruling some of his thoughts bearing upon how cases like Perry should be decided.
How can I possibly say that? Kennedy’s diction throughout his DOMA ruling (including the passages from it that Scalia quotes so bitterly) often evokes that of the briefs filed on behalf of the Perry plaintiffs (the same-sex couples eager to marry in California) more than that of the briefs filed on behalf of Edith Windsor, the plaintiff in the DOMA case.
4 Comments for “Roger Parloff on Supreme Court politics”
posted by Houndentenor on
People love to read the tea leaves of what goes on inside SCOTUS, but it’s all speculation. The court ruled as almost everyone predicted. Unless there’s some actual evidence I call bullshit on this “theory”.
posted by Tom Scharbach on
Speculation about the internal alliances on the Court is always interesting, both before and after a decision is rendered. However, it is important to keep in mind that speculation is the operative word at present, and will be for many years.
The alignment of the Justices on the two decisions is certainly interesting, and there are a number of equally plausible — well, more plausible — explanations for the Prop 8 standing decision.
I think that it is important to remember that, when raised, a decision on standing precedes consideration of the merits (if a court has no standing, it cannot consider the merits), and that in conference, the Justices would have voted on the standing issue before voting on the merits.
The Court, historically, takes standing very seriously, and the alignment of the Justices on standing issues crosses ideological lines. The Court was presented with an important, tricky standing question in the Prop 8 case. You will recall that many of the questions in oral argument were about standing. It seems to me that it is likely that a majority formed on the standing question, making it impossible for the Court to consider the case on the merits.
That leaves open the question of why Justice Kennedy (along with the “liberal” Justices — Ginsburg, Breyer, Sotomayer and Kagan) elected to include such broad language in the DOMA decision.
Parkloff speculates that the reason is that Justice Kennedy was frustrated by the liberal Justices in an attempt to issue a sweeping, national decision. I don’t buy that.
Keep in mind, first of all, that the liberal Justices joined Justice Kennedy in issuing the DOMA opinion, and, hence, bought into the language of the opinion.
Keep in mind, second, Justice Kennedy’s history on the Court. Justice Kennedy is well-known for taking an incremental approach in moving issues of major import forward.
While I don’t dismiss the idea that some or all of Justices Ginsburg, Breyer, Sotomayer and Kagan may have been reluctant to issue a sweeping, national decision, I do take issue with the idea that Justice Kennedy did want to issue a sweeping, national decision. It would be out of character with his judicial history and with his comments during orals (including, without limitation, his suggestion that the case was improvidently granted), all of which suggest that he would have voted to advance Romer to include the facts of the California case, but do not suggest — at all — that he would have favored a sweeping decision.
The broad language in the DOMA decision is consistent with both the theory that the language supports a sweeping decision and with the theory that the language supports an incremental Romer expansion.
The simplest explanation might be the prudent for the time being: A majority formed on the standing question in the Prop 8 case, making it impossible for the Court to consider the case on the merits, but Justice Kennedy and the liberal Justices wanted to advance the ball on the merits of marriage equality, and designed the DOMA language to do just that.
It strikes me as implausible that Justice Kennedy was leading a charge for a sweeping decision, and Justices Ginsburg, Breyer, Sotomayer and Kagan held him back. It isn’t consistent with his history on the Court.
In any event, we’ll know more in a decade.
posted by Jorge on
There aren’t too many plausible interpretations of Scalia’s comment to the effect that this loaf spent too much time in the oven.
It strikes me as implausible that Justice Kennedy was leading a charge for a sweeping decision, and Justices Ginsburg, Breyer, Sotomayer and Kagan held him back. It isn’t consistent with his history on the Court.
Maybe. Judging from the Obamacare case and his dissent in one of the 2003 affirmative action cases, I think he’s a justice of very strong opinions who is quite prone to decisive (if not necessarily sweeping) opinions. It is simply that he is difficult to predict.
posted by Don on
Well, if this is about guessing what they were thinking, my first reaction to the language of the decision is that it was a deliberate warning shot off the bow of anti-gay marriage advocates. “Gird your loins. It’s coming.”
By laying a foundation of thinking to be debated in public opinion, it moves public opinion toward the realization that gay marriage is a constitutional right. Although W. and Turd Blossom did much to set gay rights back, they also did much to move it forward. We were in very few dinner conversations before. Putting us in them now changes things rather strongly. Public opinion is needed for social change. And it doesn’t happen when nobody is talking about it.
I see Kennedy laying the groundwork for social attitudes to catch up with the spirit of the constitution. He’s seen what happens when rights are given to people who deserve them, but don’t have them because of public fear.