Discussion for article #224355
And then it’s all over, bitches! Haters, get ready to grab your ankles!!
Though this may be Kennedy’s legacy, IF SCOTUS takes up this case, I think it will be written by Roberts. Knowing that marriage equality is inevitable, he will not pass up the chance to try to burnish the illusion of his reasonableness by voting with the majority and assigning the drafting of the opinion to himself.
But I say “if” because there is still a chance that SCOTUS will simply not accept cert. on these cases, at least until some court creates a conflict between circuits. With each affirming lower court decision, it becomes harder for the next judge to be the martyr for the cause and stand in the doorway, Wallace-like, to try to block the march of history. Although I suspect personalities will trump precedent - the four most liberal Justices will vote to accept, because “enough is enough.” Even if Kennedy continues to waiver, Scalia will vote to accept it, not with any hopes of preventing marriage equality, but purely for his own hate-filled ego and the opportunity to once again rail against the immorality of homosexuality.
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Exactly how I see it. Roberts will jump on for the big win and claim to be the team captain.
" . . . the four liberals on the Court could well vote to take case case while Kennedy is still on the Court."
I really do laugh when I hear people talk about the “Liberals” on the Court. Who would those be, Prof. Hasen? First of all, the idea of a “Liberal” and a “Conservative” in the context of the law is not the same as it is in politics. One can have a very liberal judicial philosophy but still be a conservative politically, and visa versa. With that being said, under no reasonable analysis are there four “Liberals” on the Court. At best, there are two: Kagan and Ginsberg.
What we do have, however, are five conservative justices. There can be no denying that. I suppose then, the temptation is to call the others “Liberals”, but that does not make it so.
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Given the number of lower decisions going in favor of marriage it is true that the Supreme Court could dodge the issue, simply observing that there is no conflict. However, if several of the states appeal the decisions, and others chose to ignore what “their circuit” ruled in the case of another state, the court may not really have a choice.
I, too, tend to believe that Roberts might go against the grain and join the majority simply to write the decision. If so, I suspect he’d write a pretty lukewarm endorsement of the idea.
A bigger issue, that hasn’t been directly confronted yet (to my knowledge) is the question of reciprocity. If the court were to decide it’s up to the states there remains the question of “we got married legally, but moved and now our new state won’t recognize our marriage.” THAT might force the court to take up the issue, if only to resolve that problem. They would be hard pressed to deny cert on that one regardless of the main issue.