by Adam Winkler, Professor of Law, UCLA School of Law. Follow Professor Winkler on Twitter @adamwinkler.
*This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.
Oral argument in the Supreme Court can be opaque, especially for those who aren’t well versed in the legal issues at stake or the precedents likely to be considered. During oral argument, the justices aren’t interested in educating the citizenry. They are trying to gain a better understanding of the case or subtly influencing the votes of their colleagues, so the questions and comments fly quickly—and usually right over the heads of anyone but the experts. Because oral argument in the same-sex marriages cases will draw an extraordinary amount of public attention, here’s a list of five things to watch for when the justices hold Court on April 28.
1. Justice Kennedy
The first and most obvious thing to pay careful attention to is the questioning by Justice Anthony Kennedy. With four justices who lean liberal and four who lean conservative, the Supreme Court has long been the Kennedy Court. Because Kennedy has written all the major pro-gay rights decisions of the Supreme Court in recent years, many people assume he’ll vote in favor of marriage equality. If I were a betting person, that’s where I’d put my money, too. Yet it’s worth remembering that Kennedy’s opinions in those cases have always been compromises. In Romer v. Evans, he declined to say that sexual orientation was a suspect classification. In Lawrence v. Texas, he didn’t say gay intimacy was a fundamental right that triggered strict scrutiny. In U.S. v. Windsor, half his opinion rested on states’ rights. If Kennedy was serious in Windsor’s ode to the traditional autonomy of states over marriage, it could spell trouble. That’s why it’s worth paying close attention to what Kennedy says at oral argument. Is he skeptical of the state’s arguments? Does he express concern about the implications of overturning the marriage bans? Or does he emphasize the harms that come from denying LGBT couples marriage? Kennedy, in this as in most other cases, is the vote that counts.
2. Baker v. Nelson
Often lost in the current debate over marriage is that the Supreme Court has already held there is no constitutional right to same-sex marriage. Or at least that’s one way to read Baker v. Nelson, a 1971 case that raised the issue. The Minnesota Supreme Court upheld that state’s restriction of marriage to one man and one woman, and the case was appealed to the Supreme Court of the United States. The justices summarily affirmed the lower court decision “for want of a substantial federal question.” In other words, the challenge to the marriage ban didn’t even raise a colorable constitutional claim. Will the justices treat Baker as binding precedent warranting their deference under the principle of stare decisis? There are good reasons to believe they won’t. The law and society has changed immensely since 1971. Back then, laws discriminating against women didn’t even trigger any form of heightened review. Besides, do the justices ever really treat any prior decision as binding?