Today and tomorrow, the Supreme Court hear oral arguments in the same sex marriage cases. I will post links to the transcripts when they become available (each afternoon). The transcripts of major cases like these are well worth reading, but perhaps not for the reasons one might expect. The oral arguments are the lawyers’ opportunity to lay out their cases, but their arguments are really better articulated in their briefs. The interesting part about the oral arguments is that the public gets an opportunity to hear what the justices themselves think about the cases.
When it comes to the same sex marriage cases, the opinions of seven of the justices are relatively easy to predict. Justices Sotomayor, Kagan, Breyer and Ginsburg will likely vote in favor of same sex marriage. Justices Scalia, Alito and Thomas will likely vote against it. That leaves two justices to determine the results: Justice Kennedy, and Chief Justice Roberts.
Justice Kennedy is the perennial swing vote. Although he was appointed by a Republican president, he has a very pro-LGBTQ voting history. He wrote the majority opinions in both Lawrence v. Texas and Romer v. Evans, the two most important cases dealing with LGBTQ issues to date. Justice Kennedy’s voting record does not guarantee victory for same sex marriage supporters, but it should give them plenty of reason for optimism.
An even more interesting person to watch is the Chief Justice. Roberts was appointed by George W. Bush. Republicans hoped (and continue to hope) that the Chief Justice would move the Court in a reliably conservative direction for decades. And Roberts has, generally speaking, met expectations, siding frequently with the other conservative justices.
But last year, in probably the most watched case yet of Roberts’ tenure, the Chief Justice broke ranks and handed the liberals a massive victory in the Obamacare case. There has been plenty of speculation as to why he did that, but the best explanation seems to be legacy.
As Chief Justice, Roberts has more occasion to worry about his legacy than any other Justice. History books will refer to his time on the Court as “the Roberts Court”. They will analyze and characterize the Roberts Court and (fairly or unfairly) attribute that characterization directly to the Chief Justice.
If Roberts had not sided with the liberals in the Obamacare case, historians would already be writing their books, characterizing the Roberts Court as the most politically polarized Court in U.S. History. But Roberts threw a huge wrench in that analysis with his Obamacare opinion, suggesting that he cares not a little about the legacy he leaves.
Now, a year after the Obamacare decision, Chief Justice Roberts has another decision to make. He must be looking at public opinion polls, which are rapidly moving in favor of LGBTQ rights. He must think that a century from now, there is a good chance that a vast majority of Americans will view laws banning same sex marriage with disdain, much as a vast majority now views Jim Crow laws with disdain.
It seems likely that Roberts is asking himself whether he want to leave as a major part of his legacy a vote against that wave of public opinion. Is it too risky? Could all of his life’s work be overshadowed by that one vote? It is possible.
The safer vote is one in favor of same sex marriage. It is not much of a stretch to do so legally, based on the precedent the Court has already created. He could be seen by historians as a great conservative justice, who upheld the Constitution and the rule of law, but also foresaw the needs of a changing society.
This one vote could literally prove legacy altering for Chief Justice Roberts. And if we are to think about his choice in light of the choice he made in the Obamacare decision, we know that his legacy is very much at the forefront of his mind.
So, when you read the oral argument transcripts, pay close attention to the questions asked by Justice Kennedy and Chief Justice Roberts. Their questions will provide a guide to how they might decide the case.