Supreme Court Preview: Roberts, Kennedy, and their Court – Some Final Thoughts on Impacts and Outcomes

Prop81. Will it matter that 58% of Americans now support the freedom to marry?

Technically, the law is supposed to be insulated from the ebbs and flows of public opinion, but we all know that's not the case. Plus, there is no ebb and flow when it comes to the freedom to marry. The remarkable story of social progress over the last 10 years has shown a steady increase in the number of Americans supporting our right to marry. For Americans under 30, this is an 80-20 issue. Young Republicans even show broad support for marriage. If the last chapter of the story has yet to be written, the writing is certainly on the wall.

This evidence shows that there is an "emerging consensus" in favor of the freedom to marry. Throughout the history of the Supreme Court, as former Justice Sandra Day O'Connor stated several times, that "emerging consensus" is often reflected in Court decisions and is usually a prerequisite for important, socially-relevant cases.

Public opinion may also play a role in swaying some of the justices that sit on the fence. Let's see how the 58% may impact two important players: Justice Kennedy and Chief Justice Roberts.

Kennedy2. What will Justice Kennedy do and are we completely reliant upon his opinion?

Justice Kennedy has been an ally, effectuating nothing less than a revolution of gay rights in this country with his decisions in Romer v. Evans and Lawrence v. Texas. He likes states' rights and gay rights, as NYU Law Professor Kenji Yoshino likes to say. So, the Reagan appointee should be a natural ally on DOMA, which impinges both, and on Prop 8, which could be decided narrowly so as not to upend marriage bans across the country.

Justice Kennedy has also shown a willingness to listen to public opinion in a neutral way, even citing it in several decisions during his tenure. By contrast, Justice Scalia is a partisan opportunist when it comes to public opinion: choosing to listen to it when the public supports his conservatism and decrying or minimizing it, as he did with the reauthorization of the Civil Rights Act, when he disagrees with it. 

But, although I think Justice Kennedy will be on our side, I don't think he will be the only one.

J_roberts3. What about Chief Justice Roberts?

Chief Justice Roberts is a dyed in the wool conservative, a religious man who has shown a penchant for right-wing activism on the Court. And some progressives are nervous that the Chief Justice built up some political capital by upholding the Affordable Care act (though he did so while striking a win for conservative legal dogma), thus allowing him to buck the public an uphold DOMA and Prop 8.

But, he is also a young man who will most likely be sitting in his center chair for at least 20 years. As Richard Socarides asked on the New York blog and Emily Bazelon asked in Slate, is the Chief Justice willing to be remembered for a decision that will quite obviously be seen as backward, bigoted, and hateful in less than 20 years?

4. Will the ghost of Roe v. Wade impact the decision?

Roe is an important decision that enshrined a constitutionally protected right to choose, but even some progressive scholars — including Justice Ginsburg — believe that Roe was decided on an improper framework and may have been decided too soon. It caused a backlash; being anti-choice defined conservatism for decades (before the gays came around to scare traditionalists) and resulted in an effective counter-offensive. Just recently, for example, Arkansas passed the most restrictive anti-choice law in the nation, overriding the state's Democratic governor's veto.

Both progressive and conservative justices might be nervous about going too far, like mandating a national right to marry that erases all marriage bans with the snap of Justice Kennedy's fingers. We know that the freedom to marry is universal, but going too far too quickly could do political and legal damage to the ultimate cause. Look for several justices across the political spectrum to ask quesions about how they could narrow the scope of their pro-equality decisions.

5. Which outcome is most likely?

There are so many possible outcomes. Both cases could be thrown out on standing grounds, or one case could, or neither case could; Hollingsworth could be narrowed to just the plaintiffs or California or to 8 states or to the entire country; Windsor could apply to just Edie and to no one else; the appropriate level of scrutiny could be decided for either heightened scrutiny or rational basis, or not decided at all. And, DOMA and Prop 8 could still be upheld.

I am loathe to predict what the brilliant, but unpredictable Court will do. But, I cannot conceive of a world where either DOMA or Prop 8 still exist after the end of June 2013. 


Amid all the talk of marriage, exhortations of bigotry, remarkable progress toward a national pro-equality consensus, and smart predictions about who will decide what, we should not miss the forest for the trees. Just three years ago, few of us would have predicted that the freedom to marry would be at the Court so soon, and with such a good chance of winning. Some were worried that a California marriage case was premature; some were also worried that the country was not ready to have a debate about gays marrying. But, the expressive and persuasive effects of august federal courts declaring marriage bans and DOMA unconstitutional got us to where we are today. That, combined with the work of Freedom to Marry and the marriage coalitions, Obama's fierce advocacy, and a political and generational shift catalyzed by the President's reelection contributed to our victories in the hearts and minds of Americans.

The question of 'standing' in the Prop 8 case [tlrd]
The question of 'standing' in the DOMA case [tlrd]
Supreme Court Preview: 'Scrutiny' in the DOMA and Prop 8 Cases [tlrd]
Supreme Court Preview: Equal Protection in the DOMA and Prop 8 Cases [tlrd]

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Ari Ezra Waldman teaches at Brooklyn Law School and is
concurrently getting his PhD at Columbia University in New York City. He
is a 2002 graduate of Harvard College and a 2005 graduate of Harvard
Law School. His research focuses on technology, privacy, speech, and gay
rights. Ari will be writing weekly posts on law and
various LGBT issues. You can follow him on Twitter at @ariezrawaldman.


  1. Randy says

    Hopefully Ginsburg isn’t looking to Roe v Wade for anything. Religious nuttery will always be with us, and they would have bombed clinics and assassinated doctors no matter what the decision. We should not let the ranks of the insane decide legal matters.

  2. Factoid says

    In a way, you are pointing out a problem with the frame of making it about marriage rather than equality to me because protecting gays as a class would be seen as “going too far”

    That to me suggests there is something wrong with an equal protection argument that sees protecting the class as going too far.

  3. BobN says

    Can we please stop falling for the lie that a SSM decision is anything like Roe v. Wade?

    If the Court issues a sweeping decision, what exactly is going to be the backlash? A constitutional amendment? They’ve already tried that and it failed when it had the chance. What exactly are they going to do to try to curtail SSM rights like they do abortion? Impose waiting periods for marriage? (not a bad idea, but it’s not gonna happen) Maybe they’ll trim marriage rights around the edge, like banning limos and bridesmaid dresses. Oh, I know, protesting in front of schools with blown-up photos of dead table centerpieces…

  4. says

    @nn, The Supremes can rule whenever they want, but they adjourn each term at the end of June and then leave town for their vacations until the next term opens in October. Theoretically they can hold any case over to the next term but they almost never do so. (One time they did was in Brown v. Topeka Board of Education, which was argued in the 1952-53 term, then re-argued and decided in the 1953-54 term.) Traditionally they issue their toughest and most controversial decisions at the last possible time, which this year (I think) is Thursday, June 27. Almost certainly that is what they will do with these cases, being long gone out of town before the Clerk releases them — unless Scalia or Alito wants to read a nasty dissenting opinion from the Bench. In that case, the Court will convene, Chief Justice Roberts will announce a summary of the majority opinion and then Nino will read his sarcastic nastiness out loud, thereby cementing his reputation as the biggest bigot on the Court since Roger Taney died in 1863.

  5. Mike says

    Wow. All I can say is that I never believed in my whole life that we would be at this juncture of our lives. I’m single and excited to know that by June I will probably have the right to marry (CA). I fell in love once and would have married the guy if I had the right to do so. He’s gone now but it is something I still think about.

  6. dan says

    Roe v. Wade is a red herring…there was no fundamental right to an abortion when the Court ruled that there was..that’s why it was so sweeping a decision and still a flash point ..However, there is a fundamental right to marriage and there has been for how many years? it so far has applied to heterosexuals….

    those opposed to abortion argue that there are victims and injuries in abortion on demand, yet where are the victims and injured if SSM become a fundamental right?

  7. nn says

    Thanks for the great explanation. I think They are a bit cowardly if they wait so they can be out of town on their holiday when the verdict comes out.

    I wll be happy if DOMA get stroke Down and If People can get married again in california, best solution that it will also apply to the 9 other states. That’s going to impact all 50 states, I think is almost zero possibility. So I will be happy With the first 2 solutions.

  8. BobN says

    “…. the last possible time, which this year (I think) is Thursday, June 27…”

    IIRC, the Supreme Court was supposed to announce their decision in Hardwick on the Friday before Pride in SF. They delayed it until Monday, June 30th. I remember the bitter disappointment that day. Had the decision come out beforehand, I’m sure there would have been rioting.

  9. DB says

    My husband and I are among the 18,000 same-sex legally married couples in California. We are praying that all 38 million Californians and all 300 million Americans will soon have the legal right to marry.

  10. rick scatorum says

    Even though we are not protected under the 1964 civil rights amendment, it seems doma is unconstitutional based on sex . If Windsor were a man, she would not be federally taxed on her spouse’s estate.

    Gays are protected in Ca under the state constitution, so it seems that prop 8 is unconstitutional for that state, and others that ban discrimination based on sexual orientation.


  11. rick scatorum says

    Correction: since Californians have the right of amending their constitution by referendum, the case is whether civil unions are marriage. Would that not mean that civil unions are invalid as well?

  12. Craig Nelson says

    Justices might take Prop 8, strike it down, but on a variety of legal theories meaning there is no clear majority for one legal viewpoint (amongst (i)a general right to marry, (ii)outlawing everything but marriage, (iii)taking it away after you’ve given it and (iv)against writing it in the Constitution of a State). It would strike Prop 8 but not necessarily provide a clear precedent for other cases unless in the unlikely event of mirroring California almost exactly. There could be some surprises in the opinions written.

  13. Elegir says

    Ari said earlier that Boies won’t be at SCOTUS today, just Olson. ABCnews and Wikipedia (!) imply that both men will be giving arguments. Anyone know where Boies is or why he might not be involved?

  14. GK says

    I want to care about this, but the truth is that I just don’t really have any investment in what is decided. I know that I will never be able to marry the man I love, so whether or not it is actually legal to do so is something I am ambivalent about.

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