Handicapping SCOTUS

Yesterday, the Supreme Court granted cert–agreed to hear– two widely anticipated marriage equality cases: The United States v. Windsor, and Hollingsworth v. Perry.  Check out the estimable scotusblog for details.

So what does this mean?  Windsor challenges the constitutionality of DOMA, the Defense of Marriage Act, a 1996 federal law that essentially does two things: it defines marriage as a union between a man and a woman, and provides that states are not required to accept marriages considered valid in other states.  Essentially, it says that Article IV Section 1 of the Constitution, the “full faith and credit clause,” doesn’t apply to marriage. That always seemed weird to me.  I got married in California, then moved to Utah, then moved to Indiana.  But all three states recognized my marriage.  I’m a married guy–moving didn’t change anything.  But when my gay friends got married in New York (or Hawaii or Massachusetts), then moved to Utah, they weren’t regarded as married.  Well, that’s on account of DOMA.  In addition, DOMA codifies a federal non-recognition of same-sex marriage–in practical terms, gay couples can’t file joint tax returns, don’t get survivors benefits, that kind of thing.

Perry is about Prop 8 in California.  Prop 8 you probably remember; it was a ballot initiative that eliminated the rights of gay couples to marry in California.  The courts in California have found Prop 8 unconstitutional, saying it violated the equal protection clause of the Fourteenth Amendment.  The Court has to decide whether that’s true or not.

There are lots of ways this could go.  The Supreme Court is (here’s a shocker) ideologically divided. Justices Scalia, Alito, and Thomas are conservatives, as is Chief Justice Roberts. Justices Breyer and Ginsberg are considered liberals, and although Justices Sotomayor and Kagan are the newest members of the court and are generally considered moderates, they’re also considered likely to vote in favor of marriage equality.  This decision, like many Supreme Court decisions, will probably be settled by Justice Kennedy.

Justice Kennedy wrote the majority decision in Lawrence v. Texas, a 2003 case that struck down a Texas anti-sodomy law, and by extension, anti-sodomy laws all across the country.  A few months ago, I read Flagrant Conduct, Dale Carpenter’s excellent book about the Lawrence case.  What struck me about the case is the way in which all the courts in Texas that heard the case cooperated with the defense so that it could make it to SCOTUS.  Sodomy in Texas was only a misdemeanor, with a 200 dollar fine. And different levels of appeals courts have different standards that have to be met in order for them to hear a case.  But the lower courts (starting with the Justice of the Peace where it initially landed), all, well, conspired to move it up the line.  They all hated the law, and were thrilled when the final judgment came down.

In his decision, Justice Kennedy wrote: “The petitioners [Lawrence and Garner] are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” It was a strongly worded decision.  So marriage equality advocates are heartened at the thought that his might be the deciding vote in Windsor and in Perry. I think their optimism is warranted.

I’ve read several articles, and commentary on those articles, in Scotus.blog. So breaking out my crystal ball, here’s what I predict.  I think, by a 6-3 vote, Windsor will strike down DOMA.  I think DOMA’s doomed, at least in part.  I predict that Chief Justice Roberts will join Breyer, Ginsberg, Kagan, Sotomayor and Kennedy, and that it’s likely that Roberts will assign himself the decision.  I expect that he’ll find fairly narrow grounds to overturn DOMA using Article IV Section 1.  I also think that the Perry decision will overturn Prop 8, again 6-3, and again, narrowly.  I think they’ll simply invalidate Prop 8 in California, and require all states to recognize the legal validity of gay marriage performed in other states.

Justice Kennedy is maligned by both conservatives and liberals as a wuss, a guy who can’t make up his mind, a wishy-washy, squishy, sentimental nitwit.  (Scalia’s savage dissents in his cases almost descend that low, rhetorically).  He’s not. He’s neither stupid nor weak-willed nor philosophically inconsistent. He’s just not a conservative.  Look at his voting patterns; the man’s a libertarian. That explains his Lawrence decision, and it predicts how he’ll vote on Windsor and Perry.

Chief Justice Roberts is . . . interesting. I think he’s highly intelligent, and a committed conservative . . . up to a point.  But I think he takes his role as Chief very seriously indeed.  And the fact is, the Supreme Court doesn’t have an army and it doesn’t have a police force. The power of the Supreme Court is based in respect, in prestige, in intellectual persuasive authority.  When the Court errs (as it clearly did, for example, in Bush v. Gore, where they ought to have ordered a re-count, and declared what recount rules would be), it reduces the Court’s prestige and authority.

That’s why Roberts voted for, and wrote the majority decision for the Obamacare decision.  A decision overturning a piece of legislation as important and divisive as Obamacare would have seriously reduced the Court’s credibility–the perception that some justices are ‘conservatives’ and others are ‘liberals’, though obviously true, damages the Court’s reputation, seems to feed a perception that SCOTUS is just another partisan politicized institution.  So Roberts, against his own inclination (when do you see a justice draft both the decision and the dissent!) found a way write a very narrow decision upholding the legislation.  And more power to him.  Well done, indeed, Chief!

Obviously, we don’t know how the Court decides things.  It’s all top secret stuff, sort of. Maybe it involves some intricate games of Rock Paper Scissors.  But actually there have been plenty of books about it, and we do have a general idea.  They’ll hear oral arguments, probably in March. They’ll then take a preliminary vote.  Based on that vote, either the Chief will assign someone to write the decision, or, if he’s in the minority, the senior Justice in the majority.  The senior justice right now is Justice Scalia.  The second-most senior is Justice Kennedy.  There’s just no way I can see Chief Justice Roberts letting Antonin Scalia assign this decision.  He’ll assign it, either to Justice Kennedy or to himself.

Marriage equality advocates are hoping for a sweeping decision requiring same-sex marriage in all fifty states, overturning every anti-gay marriage law in every state in the country.  I doubt this is going to happen. The Court doesn’t like to get that much out in front of public opinion, knowing how tremendously divisive it would be.  Justice Roberts wants to assign the decision, and wants, I suspect, to write it, to craft a decision a narrow as he can possibly make it.  So I think we’ll see at least some aspects of DOMA overturned, and I think they’ll find a way to overturn Prop 8, but only in California.  And I predict in both cases, the vote will be 6-3.

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