When the Supreme Court, once and for all, grants a nationwide, constitutional right to same-sex marriage by the end of its current term in June, Justice Anthony Kennedy is widely expected to write the majority opinion. He’s ready for it, people say, having written the trifecta of opinions that paved the way for this moment (Lawrence, Romer, Windsor).
But that rests on the assumption that the Chief Justice will not be in the majority. If he is, it seems absurd to suggest that he will assign the opinion to Kennedy and rob himself of the chance to write such a historic opinion (and narrow its breadth, but more on that later). So, what will Chief Justice Roberts do (WWCJRD)? Will he insist on his conservative agenda or lead the majority in a case that will undoubtedly paint broad strokes on his legacy? We can’t know for sure, so I’ve been spending an unhealthy amount of time looking for clues and reading tea leaves, starting with his majority opinion in Hollingsworth v. Perry and dissenting opinion in United States v. Windsor.
First, I think there’s something to be said about the fact that the Chief has published only two opinions so far, as of this writing. His last majority opinion was almost two months ago, published January 21. Compare this with Scalia’s four opinions, all of which Roberts joined (two were unanimous).
That means Roberts has been assigning opinions left and right (or "right and right," as a friend suggested- get it?) to Scalia, the second most senior Justice, and trying to clear his backlog. I wouldn’t be surprised if Roberts disposes one or two more of his majority opinions between next week and April 28, when the Court hears Obergefell. What does this tell us? I think it suggests that he’s interested in writing the Obergefell majority opinion.
This desk-clearing exercise is reminiscent of what happened in Hollingsworth v. Perry almost two years ago (see table above, courtesy of SCOTUSBlog). Cert was granted in December, and oral arguments were in March. For the December and January sittings, the Chief had three opinions, and all them were speedily released by February (he’d also been assigning himself unanimous opinions- bah!). By the time the Court heard arguments in Hollingsworth, the Chief had only two opinions churning in his chambers: Shelby County (an explosive opinion that he unsurprisingly claimed for himself), and Kiobel, a reargued case that was released two weeks after Hollingsworth arguments. In other words, the Chief had relatively little homework left and was ready to write the majority opinion in Hollingsworth even before they voted for it. It's not completely crazy to say that we might see something similar with Obergefell.
Enough of the behind-the-scenes in Hollingsworth. What does the Chief’s opinion actually say?
I find it interesting and telling that he started the opinion with this: “The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry. That question has also given rise to litigation.” Then he stops in his tracks and proceeds to talk about the technical limits to this litigation, concluding that the petitioners did not have standing to appeal the District Court’s decision and “assert the State’s interests.” He never again follows up with the “active political debate” that he started the opinion with… until his dissent in a different case, in Windsor: “We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples. That issue, however, is not before us in this case.” The perfect vehicle for that issue has now arrived, called Obergefell v. Hodges.
Let’s talk about those “State’s interests” for a second. Prop 8 was about the definition of marriage. Same-sex couples had access to the benefits and obligations, etc. of marriage, but because Prop 8 insisted that marriage was limited to the union of man and woman, same-sex couples could not get “married.” The District Court reversed this and same-sex couples were able to get married-- in California. The Supreme Court’s decision left intact other states’ definitions of marriage.
In Windsor, however, Justice Kennedy struck down the Defense of Marriage Act (DOMA) and admonished the federal government not to make distinctions between these marriages, when it grants benefits to those couples. Sure, States can define marriage in their own terms but the federal government should recognize all marriages, including same-sex marriages.
What did the Chief say -- and not say -- to all these? Like Hollingsworth, we did not have to decide the merits of Windsor. But since we did, I disagree because we should not loosely assign animus and bigotry to Congress as the majority does. [eerie silence follows from lack of legal analysis]
He adds: Thanks, Justice Kennedy, for your “logical and necessary” disclaimer that this decision is limited to those marriages already recognized by the states. You “go off course, as I have said, but it is undeniable that [your] judgment is based on federalism.” Unlike Scalia, I do think that this IS a federalism question. When we do decide “future cases about the constitutionality of state marriage definitions,” we will have to confront the the same arguments of “state diversity and sovereignty” that you use to strike down DOMA today. But let’s leave that for another time. (The Chief is expert at keeping his cards close to his chest.)
Again, unlike Scalia, the Chief was very friendly to Kennedy: it’s noteworthy that he joined only Part I of Scalia’s barbed-wire dissent, standing firm in his conviction that the judicial inquiry should have ended in the standing question. Alito’s inane rant about his theory of jurisdiction? The Chief was having none of it.
In the end, I think there’s reason to believe the Chief will use the federalism question in Obergefell and rule something along the lines of what Judge Shelby wrote in Utah: “the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.”
If he does, he will certainly write it in narrow terms, as he is notoriously wont to do. If they’re in the same camp, I don’t think Roberts will let Kennedy go on his Oprah-like give-away spree of constitutional rights to gays.
Lastly, is the Chief Justice really capable of overriding his jurisprudence to seize the moment at hand? I certainly think so (His mentor Rehnquist did it in Dickerson v US, when he refused to overturn Miranda). There are about five weeks between now and Obergefell oral arguments and there are many things left to explore: the opinions that the Chief will release between now and April 28 (and what they look like); the Chief’s influence in revising the questions in Obergefell; Justice Thomas’s claim that he had wanted to hear and decide the seven same-sex marriage cases in October (where in the world did that come from??); a thorough examination of the amicus briefs and which ones, if any, will make its way into the final opinions; etc. etc..
For now, I’m dreaming of a 6-3 opinion in Obergefell.
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