Can There Be Any Doubt?


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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26 Responses

  1. Avatar BradK says:

    Question right off the bat: If Kagan recuses herself in some or all of the cases (it’s just the Mass. ones, right?) and they are all consolidated, does this mean she is recused from the lot?Report

  2. Avatar James Hanley says:

    Is there any chance they’ll be heard this year, or is it most likely to be next year?Report

    • Avatar Burt Likko says:

      There is a realistic chance that they could be heard in the late spring and an opinion would be published at the end of the term, which will occur towards the end of June. Personally, I think it’s more likely that the briefing will not be complete until the start of the next term so oral arguments and a decision would occur in the 2013-2014 session rather than the current one.Report

  3. Avatar Ryan Noonan says:

    I’d say the key questions presented are:

    1) How much does Anthony Kennedy want to solidify his legacy as the justice who finally recognized the liberty and equality of gays and lesbians?
    2) How much does John Roberts want to be on the right side of history?Report

    • Avatar Morat20 says:

      In light of the recent amendment results in the last election, and the number of states either having or moving towards same-sex marriage, I think it’s pretty obvious to everyone on the court that the wheel isn’t going to go backwards.

      Heck, Scalia recognized that way back with Lawrence — once you stop viewing gay people as criminals, it’s pretty hard to claim they can’t have the same rights as other couples.Report

      • Avatar Tom Van Dyke says:

        I think you mean Kennedy, not Scalia. From his majority opinion in Lawrence:

        “The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.”

        However, as Patterico argues, it’s possible to agree with Lawrence without finding the Constitution demands gay marriage.

        “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Kennedy, ibid.Report

        • Avatar Morat20 says:

          No, I mean Scalia. From his dissent.

          This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples.

          Scalia was pretty biting about it, both in writing and later. I probably should have written “Even Scalia knew”.

          Although now that I’ve waded through Scalia’s dissent, I feel like I need a bath. I had forgotten exactly how far gay rights have come since Lawrence.Report

          • Avatar Morat20 says:

            Scalia was, of course, warning us of the nightmarish future where homosexuals can’t be locked up anymore. O’Conner was trying to pretend they hadn’t just made gay marriage a “when” not an “if” condition.

            My point stands: Even Scalia saw this coming, back when Lawrence was decided. I don’t think his…lovely…defense of the right of states to lock up homosexuals…has gained any legal ground since.Report

          • Avatar Ryan Noonan says:

            Yeah, Scalia’s dissent in Lawrence is a real piece of work. That’s probably the exact moment I went from “Scalia’s a really smart guy I disagree with!” to “Scalia is a horrifying prick!”Report

            • Avatar Mike Schilling says:

              It made me realize that “rabid conservative” isn’t always a metaphor.Report

            • Avatar Morat20 says:

              It would have been a real piece of work in 1993. In 1983, even. 1973 possibly. I mean, sodomy laws had basically stopped being enforced everywhere. And not just because straight couples liked them some sodomy.

              Heck, the only reason Lawrence got to the Supreme Court was a strange set of events. I don’t think Texas had actually charged anyone under the sodomy laws (except, perhaps, as part of a ‘throw the book’ prosecution at a sexual predator of one stripe or another) in years. Decades perhaps.

              That opinion read like one issues in the 40s or 50s, not 2003. No one expects (and it’s a good thing) for the Supreme Court to be on the cutting edge of societal swings (sometimes it’s ahead, sometimes it’s behind) but for three of them to sign off on the cultural norms we left behind 60 years ago and are accelerating away from?

              If there’d been a 3-justice dissent in Brown basically echoing 1896’s Plessy, that would have had the same jarring impact.

              Then again, I think Scalia’s problem is less with the gay sex and more with Roe v Wade and an implied right to privacy. If he accepts that rather libertarian notion — that citizens have a right to privacy, and to make truly personal decisions without government interferences — then a lot of Scalia’s preferred policy preferences go bye-bye.

              He obviously saw Lawrence as one more nail in the coffin.Report

        • Avatar Stillwater says:

          It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

          I’d say it goes the other way: does government have the power to deny the formal recognition of gay marriage.Report

        • Avatar M.A. says:

          Oh, that pesky Full Faith and Credit clause.

          You conservatives really don’t give a rat’s patoot about the constitution, do you?Report

      • Avatar Burt Likko says:

        I think that’s right, Morat. The legal and political questions are not whether we eventually will get to a point where there is full equality, but rather a) whether that right may fairly be interpreted from the Equal Protections, Due Process, or Full Faith and Credit Clauses of the Federal Constitution, or b) whether that right is more properly recognized through legislative action, either through the vote of elected representatives or the various forms of citizen referenda, on a state-by-state basis. And it is here that we may make reference to the historic race and gender equality struggles of the mid- and late twentieth century, in which legal change occurred in both myriad legislatures as well as in the courts.Report

        • Avatar Stillwater says:

          And ironically, I think, conservatives want to make this a legislative issue (rather than a court’s issue, like Roe) but that means engaging in the politics specifically addressing the issue. When combined with other similar issues, it strikes me as a clear path to the permanent im-majority of the GOP.Report

    • Avatar NewDealer says:

      1. Probably very badly.

      2. This one is harder to say. Probably strongly but not as strongly as Kennedy wants to solidify his legacy.

      Interestingly, I can see this being a 7-2 decision with Scalia and Thomas writing something so horrible that future generations will look at them aghast. Though plenty of us look at them aghast. Thomas seems destined to prove his nastiness every term in new and unique ways. He also seems likely to hold out on the Supreme Court until the bitter end.Report

      • Avatar MikeSchilling says:

        I think Scalia writes something about SSM opening the door to people marrying their pets, and Thomas writes “This is a state matter over which we have no jurisdiction, and so I join Scalia’s dissent.” Once he sees that Kennedy’s going to approve SSM, Roberts goes that way too so he can write a decision that allows corporations that result from a merger pay a lower tax rate.Report

      • Avatar Burt Likko says:

        I hope you’re right about Justice Kennedy. My fear is finding SSM in the EPC will be a bridge too far for him: he likes federalism issues, too. But I am also optimistic.Report