Given that so many major Supreme Court rulings of late are 5-4 decisions, it's hard not to wonder which justice will be the swing vote in any given case. With marriage rights before the high court today, there's no great mystery.
It's not, by the way, Justice Antonin Scalia, whose disdain for gay rights has all the sophistication of the angry drunk at the end of the bar. Rather, it's Justice Anthony Kennedy, who has a bit of a libertarian streak, as Emily Bazelon explained.
Windsor, the DOMA case, is perfect for him. It's the suit in which Kennedy and the court could take an incremental step toward same-sex marriage while also reaffirming states' traditional power over domestic and family law. [...]The California case could be trickier for Kennedy, since it pits a voter-approved same-sex marriage ban, Proposition 8, against the argument that the Constitutions provision of equal protection under the law extends to gay couples seeking the right of marriage. Taken to its logical conclusion, the argument that banning gay marriage is unconstitutional would apply to the entire country -- and the laws of 41 states would go down. Olson will try to make it easier by offering Kennedy a way to strike down only Prop 8. The idea here is that California is different from every other state because it allowed thousands of gay couples to marry thanks to a state Supreme Court ruling -- and then it took that right away when voters approved the ban.
At least going into oral arguments, there's reason for cautious optimism when it comes to Kennedy. As Erwin Chemerinsky, a constitutional law professor at the University of California, Irvine School of Law, told Sahil Kapur several months ago, "There have been two decisions in American history expanding rights for gays and lesbians: Romer v. Evans and Lawrence v. Texas. Anthony Kennedy wrote the opinion for the Court in both. He knows where history is going and that he faces the choice between writing the next Plessy v. Ferguson and the next Brown v. Board of Education. He wants to be on the right side of history."
Lucas Powe, a Supreme Court historian at the University of Texas, Austin School of Law, added, "I think Kennedy's vote is very secure [in support of marriage equality]. Kennedy has a libertarian streak -- he has written the key gay rights opinions and I think he will continue to do so."
Well, maybe.
While that record certainly matters and gives one hope, let's also note Kennedy's new-found interest in judicial restraint (via Ian Millhiser).
U.S. Supreme Court Justice Anthony Kennedy said Wednesday that congressional lawmakers need to maintain the nation's balance of power by being able to compromise, expressing concerns that the high court is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration.Kennedy, a former Sacramento law school professor, was asked by reporters whether he thought the court was deciding too many issues that can be decided by Congress."I think it's a serious problem. A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say," Kennedy said. "And I think it's of tremendous importance for our political system to show the rest of the world -- and we have to show ourselves first -- that democracy works because we can reach agreement on a principle basis."
Kennedy's embrace of restraint is haphazard -- he voted with the right on Citizens United and Bush v. Gore -- so it'll be fascinating to see what kind of clues we can glean, if any, from this morning's arguments.