[This post was originally published on The Living Room Tumblr.]
With one hour until we finally get to the gay stuff, I might as well post my thoroughly underinformed, wild-guess predictions for what the Supreme Court will decide. Here goes:
DOMA: Struck down by a vote of 7-2. Chief Justice Roberts writes the majority opinion, striking down the law on states’ rights / limited federal power grounds. He is joined by Kennedy, the four liberals (at least as to the result), and… Thomas. Yes, Thomas.
Alito dissents; Scalia joins him. (Scalia will save his rhetorical fire for his Prop 8 dissent.) The liberals, of course, also separately concur, to say they would strike down DOMA on 14th Amendment grounds too.
Why Roberts in the majority, and as the author of the opinion, no less? Well, for one thing, because despite his skeptical questioning, you can’t trust oral argument tea-leaf-reading. You just can’t. But beyond that, I predict that Roberts will have wavered behind-the-scenes on this one, but after seeing the writing on the wall (i.e., that Kennedy was solidly with the liberals), he will have decided to be on “the right side of history” for the sake of his legacy – and to shape that history/legacy by writing the opinion himself.
Prop 8: “Punted” by a vote of 6-3, probably on grounds of standing. Kennedy writes the majority opinion. Roberts joins him. The four liberals find some tortured way to join in just enough of Kennedy’s opinion to make it a “majority” decision, but then they concur separately (or dissent in part??) to say that Prop 8 should really be struck down on 14th Amendment grounds. Scalia scathingly dissents, delighting conservatives with his biting quips and quotes. Alito and Thomas join him.
Here’s my thinking on Kennedy’s internal rationale: again, it’s a “right/wrong side of history” thought process. He won’t want to uphold the law, and enshrine firmly into 14th Amendment jurisprudence the principle that gay marriage isn’t entitled to equal protection, because he knows that’ll look really bad in 20 or 30 years. But he also won’t want to strike the law down, because he won’t want to insert the Supreme Court into the “liberal” side of a hot-button issue where the democratic process is already rapidly liberalizing the status quo. (This is a key difference, incidentally, between this situation and the situation before Brown v. Board of Education. The democratic process was making no headway there, so the court really “needed” to step in. Not so here, Kennedy will conclude. Although, get back to me in 10-20 years, if thirty-some states have legalized gay marriage, while a solid bloc in the Deep South/Great Plains/Mormon areas don’t even have civil unions yet. This scenario is one reason the “punt” will appeal to Kennedy. The time isn’t right to insert the Court into this issue – but maybe later.)
Anyway, not wanting to either uphold or strike down Prop 8, Kennedy will look for a middle path, and will find a “punt” rationale that he likes. Which one? Meh. I recall reading after oral argument that there were several possible flavors of “punt” available. I don’t remember all the details right now, and don’t really care to re-read them. The bottom line is, SCOTUS won’t decide the 14th Amendment merits.
As for Roberts, I have him joining Kennedy in a 6-3 opinion, and thus doing what everybody thought he might do with Obamacare: becoming the pragmatic/legacy-protecting sixth majority vote in what is really fundamentally a 5-4 decision with Kennedy as the swing vote. Had Kennedy swung the other way, Roberts might have too, but he won’t stick out his neck here for a lost cause. (With Obamacare, of course, everyone was wrong about this – Kennedy sided with conservatives, so Roberts’s fifth vote to uphold it was the only reason the law stood. This time, though, he’ll actually do the “Kennedy’s shadow” sixth-vote thing, to prevent “his” court from issuing another 5-4 high-profile decision.)
So, those are my predictions. They are almost guaranteed to be wrong. But I just wanted to put them down for posterity, because hey, you never know.