On next to no evidence Adam Liptak of the Times concludes it was the conservative Supremes who voted to take up the Prop 8 gay marriage case from California:
Who Opted to Take Gay Marriage Case? Ask Justice Scalia
By ADAM LIPTAK
The answer lies in the gap between two numbers. It takes four votes to hear a case and five to decide one.
If nothing else, this week’s arguments provided a telling glimpse into the process through which the court selects its docket, one that is usually shrouded in exceptional secrecy. The arguments also cleared up most of the mystery of whose idea it had been to hear the case, a challenge to Proposition 8, California’s ban on same-sex marriage.
As it turns out, it would seem the conservative members of the court, making a calculation that their chances of winning would not improve with time, were behind the decision to take up the volatile subject.
The aha moment came on Tuesday.
After Justice Anthony M. Kennedy suggested that the court should dismiss the case, Justice Antonin Scalia tipped his hand.
“It’s too late for that now, isn’t it?” he said, a note of glee in his voice.
“We have crossed that river,” he said.
That was a signal that it was a conservative grant.
Really? Why was it not a signal that Scalia thought in December and thinks now that the liberal wing of the Court had over-reached?
We are offered this speculative recap of December's process of selecting cases:
They then confronted a second, much more ambitious case, Hollingsworth v. Perry, No. 12-144, concerning whether the Constitution guarantees a right to same-sex marriage. Most observers thought the court would hold the case while it worked through one on the 1996 law, and some thought it might deny review, letting stand an appeals court decision that had struck down Proposition 8.
Instead, the court granted review in the case. That was a surprise and a puzzle. Who had voted to hear it?
One school of thought was that the court’s four liberals were ready to try to capture Justice Kennedy’s decisive vote to establish a right to same-sex marriage around the nation.
That theory was demolished in the courtroom as one liberal justice after another sought to find a way to avoid providing an answer to the central question in the case. The decision to hear the case, it turned out, had come from the other side.
Ah, well then. I understand the need for Times reporters to blame the dastardly conservatives for every little thing, but...
Back in December, Kennedy looked like an automatic fifth vote for gay marriage, as Scalia had predicted in his Lawrence dissent back in 2003 and explained by James Taranto.
However, Trouble in Liberal Paradise! Earlier in March, Kennedy, speaking in California, bemoaned the fact that the Court and not the Congress was deciding so many Federal issues. Cold feet? Maybe! In which case, the four liberals who were counting on Kennedy to be a hero might have been regretting ever taking the case at all.
Well, speculation is fun. Tom Goldtein, who surely knows more about this than me, backs the conservative faction hypothesis:
Students of Windsor and Hollingsworth have always recognized a basic tension between the theories of gay-rights advocates in the cases. The challenge to DOMA is undergirded by a sense that marriage is a matter for state rather than federal regulation. The challenge to Proposition 8 is a direct challenge to just such a decision by a state.
A majority of the Court seems poised in Windsor to invalidate DOMA Section 3 on the theory that the federal government has no interest in adopting a definition of marriage applicable to 1100 statutory provisions that as a practical matter alters the very nature of what it is to be “married.” That role, the Court will rule, is historically reserved to the states. So DOMA is a federalism case.
Some thought that Justice Kennedy would want to carry forward the project of Romer and Lawrence and be remembered eternally as the hero of gay rights. But they appear not to have fully grasped the concerns of a mainstream conservative Justice with taking so fundamental a step as finding a constitutional obligation to redefine so basic a social institution based on social science that to some appears quite new.
But if DOMA is going to be decided as a federalism case, Hollingsworth becomes a much harder case for the plaintiffs. That ruling in Windsor implies that California should have a parallel right to decide the definition of marriage for itself – i.e., that Proposition 8 should be upheld.
In fact, there is a realistic chance that the Court’s most conservative Justices understood that dynamic from the beginning and for that reason voted to grant certiorari in Hollinsgworth.
Well. People covering this one are earning their paychecks.
FWIW, Adam Liptak sniffed a conservative plot back when the Supreme Court took both cases last December. Really? Obama had just been re-elected, gay marriage won in several states, so the liberal bloc of the Court decided to play defense and the conservatives figured that now was the time to strike? Hmm...