Wednesday, March 27, 2013

Obligatory Blog Post on Same-Sex Marriage Cases

I believe federal law requires me to post something about the two Supreme Court cases on same-sex marriage argued yesterday and today in the Supreme Court. I share the lack of qualifications of most other commentators in that I'm not a Con Law expert and I don't know much about the actual constitutional issues involved. Unlike several other commentators, however, I did not pay careful attention to the oral arguments, in part because, unlike those other commentators, I don't believe anyone can predict outcomes based on the questions Supreme Court justices ask during oral arguments. In all probability, the outcomes were determined before the oral arguments took place. And it is pure guesswork to discern whether questions justices ask reveal their pre-determined positions.

Here is what I think I can say about the two cases (but don't expect anything particularly insightful): (1) the Court (with the exception of Justice Scalia) generally tries to decide cases with great politically salience, like these two, on narrow grounds, if at all possible; and (2) they both will probably be 5-4 decisions, one way or the other.

I'm very interested to learn whether any members of the Court can maintain a consistent position on federalism across the two cases. Regardless, it's heartening to know that in this day and age, when nothing gets through the Senate without a super-majority vote, our Supreme Legislature, err, Court still operates according to simple majority rule.

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