How do justices decide?
In an earlier diary,
Who Can Put A SCOTUS Justice In A Box?, I questioned the reasoning of TPM's Salil Kapur, who sees Chief Justice Roberts as trying to put Justice Kennedy "in a box" in the DOMA case,
U.S. v. Windsor. As I explained in that diary, putting SCOTUS justices in boxes is an impossible task. But the underpinnings of that analysis is an understanding that justices don't look at the law then decide cases on the merits. They look at the results they want to achieve and work backward from there.
In analyzing the Windsor case, who doubts the votes of Justices Scalia, Alito and Thomas (federalism "concerns" notwithstanding)? These votes are not based on legal principle. They are based on results—they have personal abhorrence for marriage equality. If anything, their professed concerns for federalism should drive their legal analysis—does DOMA's Section 3 impinge on states' rights?
`In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.'.
Arguably, DOMA intrudes on a traditional function of states. Certainly more so than Medicaid expansion does. Now, who thinks Scalia, Thomas and Alito will give this argument more than a minute's thought? If you do, I have a bridge to sell you.
But let's get to the two players on the Court who are subject of Kapur's ruminations, Roberts and Kennedy. Follow me to the other side to examine how results and political considerations will drive their judging process in Windsor.
Let's consider Kapur's arguments on the interplay between Roberts and Kennedy at oral argument in Windsor:
To recap, some conservative DOMA opponents — still unprepared to embrace the liberal view that the Constitution requires the federal government to treat gay and straight married couples equally — have suggested the law infringes on states’ rights. At times during the oral arguments, Kennedy appeared to join their ranks. Thus, though the liberal justices articulated a more straightforward argument, rooted in the 14th Amendment, that DOMA denies gay couples equal protection under the law, the federalist argument presented them a clearer path to a 5-4 majority to strike down the law.
Enter Chief Justice Roberts, who repeatedly sought to knock down the more circuitous 10th Amendment argument, and present Kennedy a choice: You’re either with us, or with the liberals.
Is that what Roberts did? Or instead is Roberts signalling to Republican conservatives that he still is one of them? I vote the latter. Why?
Because Roberts took a lot of guff about his ACA decision. Consider these statements from the Radical Right evangelical wing of the party:
“I certainly think his credentials were tarnished with the ObamaCare decision,” said Tony Perkins, president of the Family Research Council. “Does he care about his standing with conservatives? I don’t know.”
Gary Bauer, president of American Values and a former president of the Family Research Council, said Roberts shouldn’t be considered a conservative if he sides with the proponents of same-sex marriage after casting the deciding vote on healthcare.
If Roberts breaks with conservatives “on another major issue … then I think the whole understanding of the current makeup of the Supreme Court would be in question,” Bauer said.
He said the court would have to be seen as having a liberal majority, at least on hot-button political and social issues. Conservatives don’t necessarily think Roberts owes them a debt because of healthcare, but they’re still not convinced the ruling was a one-off event, Bauer said.
Roberts is, first and foremost, a Republican. While the Republican Party likely faces a day of reckoning on marriage equality (and any number of other issues), Roberts does not want to be the person who brings that day forward. His questioning, and I predict, his decision, will avoid being the cause of the great GOP rift on social issues.
Interestingly, I think Kennedy also wants to avoid being the bringer of the great conflagration, though perhaps on a broader scale than Roberts fears. Kennedy's record on gay rights issues is remarkably good for a conservative justice. See Lawrence and Romer.
But he also has convinced himself that he is a principled defender of states' rights and federalism. He is also a newly minted believer in limits to the Commerce Clause power. See ACA dissent (PDF).
Justice Kennedy's course, given the result he wants to achieve, is set forth by his stated views—strike down DOMA's Section 3 under the rubric of states' rights. Avoid the marriage equality question in its entirety.
This result strikes Kennedy's vanity on many levels: He will not vote to uphold, nor even defend rhetorically, discrimination against gays. He will protect his place in history. And he will also serve his stated federalism views by relying on states' rights as the basis for striking down DOMA's Section 3.
In normal circumstances, this result should appeal to Chief Justice Roberts as well. After all, he is a clever man and knows which way the wind is blowing on marriage equality. But he is under a cloud of suspicion in conservative circles at this time because of his ACA decision. He can't join this result. Because, as Gary Bauer stated, for conservatives, Roberts joining Kennedy would signal:
[I]f he sides with the proponents of same-sex marriage after casting the deciding vote on healthcare. If Roberts breaks with conservatives “on another major issue … then I think the whole understanding of the current makeup of the Supreme Court would be in question,” Bauer said.
He said the court would have to be seen as having a liberal majority, at least on hot-button political and social issues. Conservatives don’t necessarily think Roberts owes them a debt because of healthcare, but they’re still not convinced the ruling was a one-off event, Bauer said.
Does this reasoning sound "too political" for the Supreme Court? Well, welcome to the real world, the Legal Realist world that understands that the Court is a political institution, that justices act politically and that results dictate opinions as much as opinions dictate results.