On the morning of April 28, the U.S. Supreme Court heard arguments in Obergefell v. Hodges, which will determine whether (1) same-sex couples have a right to wed in all 50 states, and (2) whether states must recognize same-sex marriage performed in other states.
There will be much analysis and predicting and guessing, until the decision is issued in June. Since no one knows, it’s at best informed speculation.
This was interesting, from attorney Kevin Russell, via Scotusblog:
There is some reason to wonder whether the Chief might be angling for a compromise in which the states win the first question (i.e., they do not have to permit same-sex marriages to be performed in their states) but lose the second (i.e., they would have to recognize same-sex marriages performed in other states). It’s very hard to read the Chief, but he did ask questions in the second argument expressing some skepticism over the fact that states don’t, in fact, deny recognition to any marriage that does not conform with state law, except same-sex marriages. And, as I mentioned, Justice Scalia asked questions suggesting he might think there was a reason based in the text of Article 4 that would justify ruling for the couples on recognition but not the right to marry. So one could imagine a potential compromise that would effectively allow same sex couples to get married in states that allow it, have their marriages recognized elsewhere, but not have the Court issue a decision that has broad implications for other kinds of sexual orientation discrimination.
But Russell, who has argued 11 merits cases and served as counsel or co-counsel in nearly 50 merits cases before the Supreme Court, also observed:
Kennedy’s relative silence in the second argument may be good evidence that he intends to rule in favor of the couples on the main question — that is, it suggests he will vote to require states to allow same-sex marriages in their own states, which will effectively moot the question of whether they are required to recognize the same-sex marriages performed in other states.
Sexual Orientation Animus or Gender Discrimination?
[Chief Justice John] Roberts asked a question that neither side had pressed. If a woman wants to marry a man, she can. If a man wants to marry a man, he can’t. Why isn’t that sex discrimination, he wondered.
So perhaps he’s angling for a ruling based on sex discrimination, which might avoid fears of inadvertently opening up marriage to multiple partners. But a question that neither side had pressed?
It hinges on Justice Kennedy, and many remain optimistic he’ll side with the liberals in finding that the 14th Amendment’s equal-protection and due-process guarantees leave no justification for denying marital status to same-sex couples. The fun speculation starts with what if Kennedy is hesitant to go against, in his words, “This definition [that] has been with us for millennia”?
James Taranto, in a column at the Wall Street Journal otherwise fairly unsympathetic to marriage equality, picks up on Chief Justice Roberts query about a ruling based on, in his words, “a straightforward question of sexual discrimination.” Taranto suggests this would, in fact, take care of Justice Sam Alioto’s speculation about opening up marriage, on equal protection grounds, to incestuous and polygamous/polyamorous relationships, noting:
From the premise that men and women are equal before the law, it does not follow that a pair of siblings are the equivalent of a married couple, or that 1+1=4.
If Roberts were to place himself in a position where history would not judge him unkindly, that’s the way he would go.
——
[Added: Lawyer friends tell me that that this has to do with the level of equal-protection scrutiny applied during judicial review. The Supreme Court has held gender discrimination to intermediate scrutiny, a notch below the strict scrutiny standard applied to race. Also, by framing a decision in terms of gender discrimination, the court could avoid a ruling with broader implications about sexual orientation discrimination in employment, housing or other contexts.
Put simply, a ruling that overturns state bans against same-sex marriage because government may not discriminate due to animus regarding a couple’s sexual orientation would have wider reach than a decision that overturns state bans because government can’t discriminate on the basis of gender against individuals who want to marry someone of the same sex. For that reason, it’s not what some activists would prefer, and explains why the gender-discrimination argument wasn’t put before the court—and why some conservatives who see a decision legalizing same-sex marriage as inevitable are pushing for using gender discrimination as the basis. But frankly, if it gives us the freedom to marry, I can live with that.
Also, via the New York Times, Gender Bias Issue Could Tip Chief Justice Roberts Into Ruling for Gay Marriage. There’s speculation that behind closed doors Roberts may be offering his support to Kennedy and the liberals if they are willing to go along with a decision on narrower gender-discrimination grounds, because a 6-3 decision would be viewed as more legitimate than a 5-4 ruling.]
——
The Wall Street Journal‘s page 1 story picks up on the point where I began this post, that if, again, Justice Kennedy doesn’t swing as far as many expect him to, the likely compromise is to find states must recognize same-sex marriages performed elsewhere:
[Roberts] said it may be “a big step” to find that the 14th Amendment requires all states to perform same sex marriages, but the idea of requiring states to recognize out-of-state marriages under “domestic relations law is pretty straightforward.”
I’m dubious it will come to this “fall back” compromise, but that’s sure looking like the worst case scenario.
And what’s more… Timothy Sandefur parses an Alito absurdity about ancient Greece. And Amy Davidson in the New Yorker on Justice Alito’s Polygamy Perplex.
40 Comments for “Supreme Arguments”
posted by Jim Michaud on
Correct. If SSM wins the first question, the second question is moot. What I’m not surprised with is, while reading the SCOTUS blog, that there were several disruptions right in the courtroom. All on the anti-SSM side. If that doesn’t show animus, I don’t know what does. Yeah, that’s really going to go over well with the justices, who prize decorum.
posted by JohnInCA on
“Several”?
I listened to the audio earlier today and I only remember one disturbance (about 27 minutes into the first question). When were the others?
posted by Jim Michaud on
I apologize for the boo-boo. I was reading a blog that mentioned the protestor several times and mistook him for being several people. Yeah, let’s leave the misinformation and distortion to the anti side. Hence this mea culpa.
posted by JohnInCA on
Meh, no harm, no foul.
posted by Hou on
There were such discrepancies in various sources. Your confusion is understandable.
posted by Tom Scharbach on
I don’t think that speculation is useful, and I’ve long since learned that questions put in oral argument aren’t predictors, but I think that the idea of a “compromise” is legal argle-bargle, as Justice Scalia might put it.
The reason I think that is found in the only question that Justice Kennedy asked with respect to the recognition argument:
States are historically permitted to refuse the acts of another state under “full faith and credit” if the state refusing recognition has a strong public policy purpose underlying the refusal. Although the cases are sparse, the principle has been applied to marriage recognition in the past. That was the point of Justice Kennedy’s question, and a “compromise” — requiring recognition despite the “strong public policy exemption” — would turn “full faith and credit” precedent on its head.
I think that we will win on Question 1 (marriage equality) and Question 2 (recognition), both. But if we lose on Question 1, it seems to me that we will necessarily lose on Question 2.
I cannot imagine a circumstance under which Justice Kennedy, a strong advocate of states’ rights, would join in an opinion abrogating the “strong public policy” exemption to “full faith and credit”, unless Question 1 is answered in the affirmative, in which case Question 2 is moot.
Justice Kennedy asked numerous questions with respect to Question 1 (marriage equality). He asked just one with respect to Question 2 (recognition), and that question clearly (to my mind, anyway) signaled is disdain for a “compromise”. Chief Justice Roberts, angling or not, is very unlikely to catch Justice Kennedy.
posted by Houndentenor on
There have been cases in which states refused to recognize marriages that would not have been legal in their own state. First cousin marriages, for example, are legal in some states, illegal in others and even criminalized in some. States are not required to recognize marriages performed in other states. They are only required to accept court rulings such as divorces and custody decrees.
posted by Tom Scharbach on
It is a little more complicated than that, Houndentenor.
The rule of thumb is that states must recognize the marriages performed in other states (even though the marriage in question might not have met the technical requirements of marriage in the state in question) unless the marriages performed in other states run afoul of a “public policy” of the state being asked to recognize the marriage.
The court cases in which states have refused to recognize marriages all involved marriages from other states that ran afoul of “public policy” in the states refusing to recognize the marriages — consanguinity (degree of relationship), miscegenation (interracial) and so on.
Justice Kennedy’s question (which was more a shot across the bow of Chief Justice Robert’s proposed “compromise”) pointed out that same-sex marriages would fall under the “public policy” exception to the general rule of “full faith and credit”:
Note the word “necessarily”. Justice Kennedy is pointing out that Justice Roberts earlier statement ( the idea of requiring states to recognize out-of-state marriages under “domestic relations law is pretty straightforward) might be straightforward, but only in the sense that the answer “necessarily” must be that states with anti-marriage amendments and laws cannot be forced to recognize the same-sex marriages under existing legal precedent.
I listen to all the speculation about a “compromise” in which Question 1 (marriage equality) is answered in the negative but in which Question 2 (recognition) is answered in the affirmative, and I shake my head.
As Justice Kennedy pointed out, that “compromise” is legal argle-bargle, in the sense that it doesn’t comport with existing law and would require a major change in the legal understanding of the “public policy exception”.
And, I wonder, where would the votes for a compromise come from, even if the Court decided to ignore existing legal precedent?
Justices Alito, Scalia and Thomas are unlikely to come down in favor of recognition — I can’t imagine any of them coming down affirmatively on either question presented), Justice Kennedy clearly suggested that he would not, and so who is left? Justices Breyer, Gingsburg, Kagan and Sotomayer are just as unlikely to unpend the “public policy” exception as is Justice Kennedy.
I just don’t see how it can work, legally or in terms of Court internal decision-making.
Justice Roberts has his ass in a crack, though, and that’s for sure.
Obergefell will be one of the major opinions for which the “Roberts Court” is known as history is written, and the Chief Justice is a political animal. He will be loath to be on the wrong side of the decision, going down as a dissenter in one of the Court’s major decisions (perhaps only decision) advancing civil rights during his tenure.
He knows where this is headed, and, like most Chief Justices, he has shown a propensity for getting himself into the majority on major decisions. The rub for him is that he’s made it clear in earlier decisions that he does not believe that the 14th Amendment protects marriage equality, or gays and lesbians generally.
So if he is to find a path to a concurrence, and the “compromise” fails (as it is almost certain to do) his concurrence will have to be through gender discrimination.
posted by Jim Michaud on
And yes, Mary Bonauto laid an egg today. She was off her game. I was counting on her. Chalk it up to this being her first SCOTUS appearance. Those SSM couples must’ve cringed.
posted by J.Z. on
Who decided to go with a lawyer who had never argued before the Supreme Court before? And when Roberta Kaplan (who did a wonderful job arguing against DOMA) wanted to do so, as did Ted Olson and David Boies (mega-experienced Supreme Court litigators who argued against California’s Prop. 8 before the Court)?
Sometimes this movement and the activists who call the shots lack all sense, and it’s a wonder so much as been accomplished despite it.
posted by Tom Scharbach on
Who decided to go with a lawyer who had never argued before the Supreme Court before?
The lawyers who argued Question 1 (Mary Bonauto) and Question 2 (Douglas Hallward-Driemeier) were selected by the lawyers representing the parties before the Court in the various cases.
posted by Bruce on
Actually, there were several cases (at least 4) with separate legal representation that were joined. One set of plaintiffs were represented by Robbie Kaplan, I believe, so she may have been a better choice. But there were negotiations and it was determined that GLAD (Gay & Lesbian Advocates and Defenders), headed by Bonauto, should have it’s turn.
posted by Houndentenor on
Some interesting points there. I hadn’t considered that Roberts (and perhaps some others) might rule that states would have to accept marriages performed in other states, but that isn’t the case for other marriages not legal in the states where they were performed. So far as I know that’s never gone before SCOTUS, so that would be an interesting take, but would that also invalidate marriage in the states where the federal court overruled the state courts on marriage equality? Too bad the private deliberations among the justices aren’t public record because that will probably be far more interesting than the oral arguments (and then it probably almost always is).
Meanwhile Scalia asked if this would mean that ministers could be forced to perform marriages they disagree with which he knows full well they can’t. He’s an embarrassment not only to this court but all courts past, present and future.
posted by Mike in Houston on
It was particularly telling from a ‘constitutional originalist”.
Contra Stephen’s earlier posts about progressive authoritarians, I wonder how the Court can sidestep the obvious animus (and decorum breach) by the “homosexuals are abomination” protester in chambers.
posted by JohnInCA on
Yeah… hearing Scalia talk about forcing pastors was just a “WTF?” moment. And then the lawyer (can’t remember which it was) completetly whiffed on the answer… they had to be saved by Ginsburg I think (maybe Sotomayer? I’m bad with recognizing voices so unless they said a name I wasn’t sure which justice was talking for most of it).
When really, the simple answer was “first, that’s a red herring, second, no pastor has been forced to marry an interfaith or interracial couple since 1964, so I’m not sure why anyone would start forcing them now”.
posted by Jorge on
Meanwhile Scalia asked if this would mean that ministers could be forced to perform marriages they disagree with which he knows full well they can’t. He’s an embarrassment not only to this court but all courts past, present and future.
I’ll need to hear it for myself, but a question is not an argument.
Sometimes when supervising people I will ask questions I already know the answer to because I believe it’s a bad idea to take it for granted that the other person does. Some things are too important not to have people on their guard about it. It’s the kind of question designed to fish, reinforce, or impeach.
posted by JohnInCA on
The reason people are flabbergasted is because it wasn’t just Scalia pulling out the Socratic method.
From page 23 of the Question 1 transcript:
“JUSTICE SCALIA: But but right to this
24 day, we have never held that there is a constitutional
25 right for these two people to marry, and the minister is”
From Page 24 of the Question 1 transcript:
“1 to the extent he’s conducting a civil marriage, he’s
2 an instrument of the State. I don’t see how you could
3 possibly allow that minister to say, I will only marry a
4 man and a woman. I will not marry two men. Which means
5 you you would you could you could have
6 ministers who who conduct real marriages that that
7 are civilly enforceable at the National Cathedral, but
8 not at St. Matthews downtown, because that minister
9 refuses to marry two men, and therefore, cannot be given
10 the State power to make a real State marriage. I don’t
11 see any any answer to that. I really don’t.”
You can go dig up the surrounding context, but in my opinion at least it doesn’t get better.
posted by Mike in Houston on
I found the back and forth on procreative state rationale enlightening… especially when the Michigan lawyer simultaneously stated that over-inclusion of non-fertile/ non-procreative straight couples somehow (but not really) furthered the state’s interest but that gay couples somehow did not. Even Scalia & Roberts couldn’t rescue him.
posted by JohnInCA on
Listened to the audio earlier today. I don’t pretend to be any good at predicting the Supreme Court, but only Kennedy and Roberts seemed actually interested in the answers. The others seemed more t be scoring points and rescuing lawyers.
posted by Tom Jefferson III on
Personally, treating the secular/civil ban on same-sex marriage as a case of sex discrimination is a great Constitutional idea. Although I do not think that the high court really wants to go down that road (for better or for the worse). But time will tell.
Justice Ginsburg will probably vote for Constitutional equality — unless she agrees with the “nation is not ready for…” backlash argument and votes for some sort of “some progress now, the rest later” compromise.
Justice Thomas will probably vote against Constitutional equality. Given his previous dissenting opinions.
posted by Tom Scharbach on
I’m dubious it will come to this “fall back” compromise, but that’s sure looking like the worst case scenario.
You should be dubious. The “compromise” is a legal non-starter. Roberts is trashing around, looking for a way to end up in the majority, and the “compromise” won’t do it for him because it is likely to be a majority of one.
posted by Tom Scharbach on
Correction: “trashing around” should be “thrashing around”.
posted by Tom Jefferson III on
The Chief Justice is not the first person to look at the ban as a case of sex-discrimination, although it is certainly interesting to see him raise the question within the context of the “Q&A session”.
—Lawyer friends tell me that that this has to do with the level of equal-protection scrutiny applied during judicial review.
Correct. Sex discrimination by the government (remember that discrimination by the private sector is not directly addressed by the Constitution) is handled (since the 1970s) as being more serious then ‘rational’, but less serious then ‘strict’.
Racial or religious discrimination is (generally) given strict scrutiny. Political discrimination should be here — and sometimes it is and sometimes it ain’t.
Romer (1996) and Lawrence both (2003) both relied on the lowest level of judicial review; rational.
Basically, the different levels of equal protection revolve around how much discrimination the Federal or State government can commit against a citizen or a class of citizens.
Today, this sort of racial or religious discrimination is almost always unconstitutional (except for two narrow exemptions).
Since this sort of sex discrimination is looked at with the intermediate level of review, their is considerably more leeway for discriminatory laws and policies to be upheld.
—sexual orientation discrimination in employment, housing or other contexts.
Again. The equal protection and due process rights found in the Constitution do not directly apply to the private sector. That type of discrimination has to be handled by a Federal or State law dealing with equal opportunity.
It is possible that a State Constitution directly deals with private sector discrimination –although it would be a rare thing to find.
posted by Tom Scharbach on
There’s speculation that behind closed doors Roberts may be offering his support to Kennedy and the liberals if they are willing to go along with a decision on narrower gender-discrimination grounds, because a 6-3 decision would be viewed as more legitimate than a 5-4 ruling.
I wouldn’t take the implied threat (that Chief Justice Roberts will vote against marriage equality unless Justices Kennedy and “the liberals” abandon equal protection as a rationale for a decision) too seriously. It is an empty threat, if it exists.
As I noted yesterday, “Obergefell will be one of the major opinions for which the “Roberts Court” is known as history is written, and the Chief Justice is a political animal. He will be loath to be on the wrong side of the decision, going down as a dissenter in one of the Court’s major decisions (perhaps only decision) advancing civil rights during his tenure.”
Accordingly, Chief Justice Roberts seems to looking for a way to vote in favor equality, despite his clear and documented rejection of an equal protection analysis in earlier cases. He may not join the majority opinion, but he isn’t going to vote against equality, either. That’s the rock and the hard place.
Although it is a fool’s errand to predict what the Supreme Court will do, here is a prediction:
A majority opinion based on equal protection, with a concurrence from the Chief Justice on gender discrimination, will be a 6-3 decision. Because of that, Chief Justice Roberts has no leverage on Justice Kennedy and “the liberals” who will write an equal protection opinion, unless the Chief Justice threatens to vote against marriage equality if Justices Kennedy, Breyer, Ginsburg, Kagan and Sotomayer issue an equal protection opinion.
I can’t see him doing that, given that his ass is in a crack in terms of history. You can bet that Justices Kennedy, Breyer, Ginsburg, Kagan and Sotomayer know that, too.
posted by Tom Scharbach on
It occurs to me, thinking about this, that Justice Kennedy might be able to square the circle by writing a “two-basis” opinion, first finding for marriage equality on the basis of equal protection and second finding for marriage equality on the basis of gender discrimination.
If he does that, then Chief Justice Roberts can write a “concur in part, dissent in part” opinion, which would create a 6-3 majority on gender discrimination and a 5-4 majority on equal protection. It doesn’t make any difference in the result (6 affirmative, 3 negative is 6 affirmative, 3 negative no matter how it is sliced) but it might be a way for Justice Kennedy to give Chief Justice Roberts a way to save face.
That assumes, of course, that all four of Justices Breyer, Ginsburg, Kagan, and Sotomayer would concur with a gender discrimination analysis. That might or might not be the case.
posted by Tom Jefferson III on
Unclear whether or not a majority of the mentioned justices would agree to sex discrimination analysis. The analysis has been mentioned by scholars and laymen (and women) before this case.
posted by Tom Scharbach on
I agree.
It seems improbable that Justices Breyer, Ginsburg, Kagan, Kennedy and Sotomayor would abandon the equal protection rationale at this point, given that the entire history of Supreme Court precedent with respect to “equal means equal” since Romer has been based on that rationale. So, unless one of them gets cold feet at this point, we’ll see a 5-4 decision on equal protection grounds.
The question is whether any of them will join Justice Roberts in a gender discrimination rationale as an , and if so, how many and in what form (as part of the majority opinion, joining Roberts in a concurring opinion, separate concurring opinion).
Just about the only thing certain at this point is that Justices Alito, Scalia and Thomas will decide against equality, period, and that Chief Justice Roberts will not join an equal protection majority. After that, just about everything is up for grabs in terms of how this will work out.
posted by Houndentenor on
I think you may be right that this will be the debate among the justices over the next month or so. Of course they don’t all have to sign on to the same ruling to form a majority, as in the ACA case in which Roberts wrote his own opinion siding with the majority but for different reasons.
posted by Tom Jefferson III on
It is not really too relevant for the United States — but it is sort of interesting to read about what has been going on in Mexico with regards to marriage equality;
In Mexico, several States governments — mostly run by elected progressives — have passed laws recognizing same-sex marriage. Although if my Spanish is any good, it looks like Mexico City itself has granted recognition.
Basically, gay couples in Mexico that want to get married do in Mexico City or in one of these Mexican states. After which, they have to be recognized as a valid marriage across Mexico.
posted by Jim Michaud on
I don’t care really if the decision is 5-4 or 6-3. I just want SSM to win. The justices must surely know the can of worms that will be opened, the legal chaos, confusion and grand cluster of all clusters that will occur if SSM loses. I’m sure they don’t want that stain on their legacy. Cautiously optimistic that the better angels will prevail.
posted by Tom Scharbach on
I agree.
When the Court refused to issue stays of lower court equality decisions over the last year, the Court knew full well that it was setting the country up for a legal hell if the Court decided against marriage equality this June.
As far as I am concerned, that was a clear “tell” that a marriage equality majority exists and has the necessary votes. The size of that majority is a detail.
posted by Houndentenor on
I’m happy to see Stephen acknowledging the absurdity of Alito’s comments. Of course it would be better if Alito had never been appointed to the court in the first place. And worse I shudder to think what absurdists McCain would have appointed had he been elected in 2008.
posted by Lori Heine on
The Greeks! The ancient Greeks! Alito is losing his mind.
Opponents of SSM are becoming more absurd all the time. This is sheer desperation. Bring on the tinfoil helmets, the CIA and the Smurfs.
posted by Houndentenor on
The rhetoric on the right is getting more extreme by the day. If anyone thinks this issue evaporates after a decisions, they are in denial.
posted by JohnInCA on
Even if we “win”, but don’t win on equal protection grounds, what happens then? There’s a whole mess of states that won on equal protection grounds including (IIRC) California in the Prop 8 case.
If the SCOTUS says there’s no equal protection case does that invalidate all those prior rulings they let stand? Or does it just open them up to be re-litigated?
posted by Dale of the Desert on
Can someone with more knowledge and experience in matters before the SCOTUS enlighten me about Supreme Court procedure? It’s been my understanding that the oral arguments heard on Mondays are taken to conference and voted upon by the justices on Wednesday of the same week. If that is true, then the die is cast and the outcome of SSM is already decided, and speculation about it just gives us something to keep us busy for the next two months while we wait for the court to write the majority and dissenting opinions and release them. Or is that not the way it works?
posted by Tom Scharbach on
The decision-making process follows this path: Certiorari grant, briefing (written arguments), oral arguments, conference, opinion writing, and announcement. The decision itself is shaped during the conference and opinion writing stages.
The Court has never issued public guidance about the conference and opinion writing stages, but Court clerks and others familiar with the process who have written about it describe a reasonably complicated back and forth between the Justices during the conference and opinion writing stages. Most of what I’ve read about it is consistent (so I assume that it is accurate), and the written descriptions are consistent with what I’ve learned over the years from a friend who clerked for the Court and worked for the Solicitor General’s office. I think that it is fair to say that although not public, the information is not a secret, either.
The Justices meet on Wednesdays and Fridays to discuss the cases that have been heard in oral arguments. The Justices are alone in conference. The Chief Justice presides over the conference, and no minutes are kept.
The Chief Justice summarizes the case being considered, and offers a recommendation about how to handle the case. Each Justice, in reverse order of seniority, is then asked to give his or her view of the case, and indicate how the Justice would decide. At the conclusion of discussion, the Justices vote. By tradition, the senior Justice in the majority (if the Chief Justice is in the majority, the Chief is senior, otherwise seniority is determined by years on the Court) assigns the task of writing an opinion to one of the Justices in the majority.
In minor cases, a summary opinion may be the end result. In major cases, the Court issues a written opinion, and often individual Justices issue concurring opinions and/or dissenting opinions.
The Court’s majority opinion states the facts of the case, announces the decision and explains the majority’s reasoning in reaching a decision. Concurring/dissenting opinions typically focus only on the majority’s decision and the reasoning. Concurring opinions reflect the views of Justices who reach the same conclusion as the majority opinion, but for different reasons, and/or Justices who want to, for whatever reason, offer an expanded/contracted rationale. Dissenting opinions reflect the views of Justices who disagree with the majority decision.
During the opinion writing stage in important cases, multiple drafts of the majority opinion, concurring opinions and dissenting opinions are circulated among the Justices, and informal discussions (often using clerks as the vehicle) are common.
Justices comment back and forth on the draft opinions, working to influence the other Justices about the reasoning underlying the majority decision (the reasoning, not the decision alone, is what sets “precedent” for future decisions, so the reasoning expressed in an opinion is at least as important as the decision itself), and it isn’t unusual in major cases for the majority opinion draft to undergo major revisions, accommodating the objections of individual Justices about the reasoning of the draft opinion, to hold the majority together and reach a final result that satisfies each of the Justices joining in the majority opinion.
The “bargaining” process can go on for months, and although the conference vote is, in most cases, indicative of the final outcome, that is not always the case, and Justices do shift their views during the opinion writing process.
Brown v. Board did not start out as a unanimous decision, but Chief Justice Warren crafted the majority opinion to gain support, and the opinion, when issued, was unanimous. In Hardwick, Justice Powell initially voted to declare sodomy laws unconstitutional, but then changed his mind, and the decision was 5-4 to uphold the sodomy laws.
Quite a number of other examples of shape shifting during the opinion writing stage exist. Most instances are not so dramatic as either Brown or Hardwick, but the Court’s opinion is shaped by the bargaining in many cases, and whenever an opinion is issued that is “unclear” as to its reasoning, it is a fair bet that the opinion was shaped by the views of Justices holding different/conflicting rationales.
My guess is that Chief Justice Roberts will try to shape the conference and opinion writing process so that he can join the majority. Because Justices Breyer, Ginsburg, Kagan, Kennedy and Sotomayor have joined in previous opinions (most notably Romer and Windsor) using equal protection as the rationale, I don’t think that there is a prayer that Chief Justice Roberts will convince the majority to abandon the reasoning of the earlier cases and shift the rationale from equal protection to gender discrimination. I think it possible that the Chief Justice can bargain his way into a “dual-rationale” opinion, allowing the Chief Justice to issue a “concur in part, dissent in part” opinion, but my guess is that he will be stuck with issuing a concurring opinion that is distinct in its rationale from the majority opinion.
As you point out, though, all we are doing at this point is speculating, something to “keep us busy”. The matter is in the hands of the Justices, and we’ll have to wait and see what happens.
posted by Fritz Keppler on
I realize it is all speculation, but will the justices have a separate vote on the two questions asked, giving the results in separate numbers? Then I’m wondering, would it be possible to have a vote of, say, 5-4 in favor of nationwide same-sex marriage followed a vote of (dreaming) 9-0 that the states have to accept marriages enacted in other states, just because even the most conservative justices might not think it feasible to have states pick and choose which faits accomplis given to them that they are obliged to accept or not?
posted by Bud on
If a majority rules in favor of a constitutional right to same-sex marriage nationally, on whatever grounds, the second question becomes moot and won’t be addressed, say those who know about such things.
So, in that case, they won’t even vote on the second question.
posted by Fritz Keppler on
Thanks!