Want to know how each Justice will vote in the future on the same-sex marriage issue? A clue might be in how they voted on the jurisdictional issues this past June. In both cases, the Court had to first decide the technical issue of jurisdiction before it decided the substance of the case. Here is how the nine justices voted:
Jurisdiction in both cases: Kennedy and Sotomayor
Jurisdiction in neither case: Scalia and Roberts
Jurisdiction in DOMA but not Prop 8: Ginsburg, Breyer and Kagan
Jurisdiction in Prop 8 but not DOMA: Thomas and Alito
The question of jurisdiction was similar in the two cases, so it is surprising to see five of the nine Justices vote in favor of jurisdiction in one case, but not in the other. Just for fun, let’s take a cynical perspective and assume that these five justices voted the way they did for strategic (not legal) reasons.
What were their strategic motives you ask? Well, what would they have done if they were Houses in Game of Thrones?
The Scalia/Roberts faction, much like House Lannister, is bold, determined and ruthlessly intelligent. This faction rules the Court right now (Roberts is the Chief Justice and Scalia has the most intellectual stature). They are excellent at playing the SCOTUS game, and they have fought hard to make it to where they are. Although Justices Scalia and Thomas currently reign over the Court like King Joffrey, with a Democrat in the White House, national demographics shifting against the Republican Party and public opinion swinging in favor of same-sex marriage, the long term outlook for House Scalia is dim.
Justices Scalia and Roberts voted against jurisdiction in both cases in June. Let’s assume those votes were genuinely based on their view of the law, since they were consistent.
Justice Kennedy is the swing vote on the same-sex marriage issue, and he holds immense power as a result. Daenerys Targaryen is the mother of dragons, and holds their tremendous power under her command. Justice Sotomayor is probably the Justice who the average person identifies most closely with, and she is influential as a result. But like their Khaleesi counterpart, these Justices have not yet learned to fully wield their power in an organized way. If they were able to embrace and take advantage of their power, they could likely wrest control of the Court away from House Scalia.
Justices Kennedy and Sotomayor voted in favor of jurisdiction in both cases. Keep that in mind. The swing vote wanted to decide the Prop. 8 case and may have wanted to rule on the question of whether there is a nation-wide constitutional right to same-sex marriage. Again, since their votes were consistent, let’s assume that these two Justices’ votes were based on legitimate legal reasoning.
House Greyjoy would love to return to the their glory days pillaging the coast from the Iron Isles, Justices Thomas and Alito would also love to return to times long ago: before the New Deal, when everyone seemed to worship the same god and hated big government (much easier to pillage that way). House Thomas is often written off as the extreme right faction of the Court. The two Justices are predictable and old school. They think same-sex marriage is an abomination, and would love to see the political and legal momentum in the US turn decisively against its legalization.
Justices Thomas and Alito voted against jurisdiction in the DOMA case and for jurisdiction in the Prop. 8 case. Why would they do that? Well, they knew that if the DOMA case was decided on the merits, the Court would hold DOMA unconstitutional. They like DOMA and wanted to preserve it. So, they voted against jurisdiction in that case, in an effort to prevent the Court from striking down DOMA.
But, these two voted in favor of jurisdiction in the Prop. 8 case. That might mean that they knew how Justice Kennedy would have voted on the merits of the case, liked it, and wanted the case to be decided. If that’s true, we have to assume that Justice Kennedy would have upheld Prop. 8 and may have even ruled that there is no national constitutional right to same-sex marriage.
Justices Ginsburg, Breyer and Kagan are idealistic like House Stark of the North and see themselves as engaged in a righteous battle in which they represent all that is good against the evil ways of House Scalia and House Thomas. Though they have been around for a long time, they identify with younger generations. These Justices fervently support same-sex marriage, and although they have lost many battles, they stand a pretty good chance of ultimately winning the war.
These three Justices voted in favor of jurisdiction in the DOMA case and against it in the Prop. 8 case. They hate DOMA and wanted to see it stricken down. They probably knew that Justice Kennedy would vote with them to hold DOMA unconstitutional. So, they voted in favor of jurisdiction, and that is exactly what happened.
But these three voted against jurisdiction in the Prop. 8 case. If they had the votes for the Court to declare a national constitutional right to same-sex marriage, is there any way that all three of these liberal justices deprived the Court of that opportunity by voting against jurisdiction? I don’t think so. It’s much more likely that House Ginsburg saw the writing on the wall and avoided setting back the same-sex marriage movement, by voting to deprive the Court of jurisdiction, leaving the resolution of the same-sex marriage issue for another day.
Nobody except the nine Supreme Court Justices know how Justice Kennedy will eventually vote on whether there is a national constitutional right to same-sex marriage. The language he has used in past opinions, namely–Windsor, Lawrence, and Romer—suggest that he is inclined to rule that the right exists. But the way House Thomas and House Ginsburg voted on the jurisdictional issues this past June suggests the opposite. Perhaps the upcoming season of Game of Thrones will shed some light.
 Note, these analogies are based on the TV adaptation HBO series Game of Thrones, and NOT the orginal “Song of Ice and Fire” source material.