I rarely link to BuzzFeed here. I restrict posting listicles and tests to see which Boardwalk Empire character one is to facebook and da twittah. I made that last one up, but there oughta be a such test. Get on it, y’all.
Anyway, I don’t think BuzzFeed when I contemplate posting about SCOTUS but their legal editor, Chris Geidner, wrote the best thing I’ve read about the court’s refusal to grant cert yesterday:
Supreme Court Justice Anthony Kennedy often focuses on two ideas when he plays a part in moving the law: human dignity and the cumulative importance of the states.
On Monday, the court decided not to take up seven cases involving bans on same-sex couples’ marriages. The decision advanced Kennedy’s two main interests in a significant way — and set the course for achieving marriage equality in 50 states.
Those were the first two graphs, make sure you read the rest to learn why I concur with my learned colleague from BuzzFeed. There were clearly sufficient votes on both sides of the issue to take on the cases but the Windsor dissenters know they don’t have the votes and the majority in that case want more states to legalize gay marriage. It’s much harder to take rights away from people than it is to grant them. If the number approaches 30, there’s a chance that the pro-gay rights wing of the Court can win the vote of another Justice. The Chief may be the target. He’s very conservative but also more pragmatic than the other right wingers.
Another reason the Supremes didn’t take on these cases is that there are no conflicts in the Circuit Courts as of yet. The Fifth Circuit has challenges to marriage bans in Texas and Louisiana on its plate. It’s an ultra-conservative appellate court so my hunch is that they will uphold the bans. BUT yesterday’s inaction may have jump started the inevitability train and they could surprise us. We shall see.
There has been, of course, a lot of derpery in the commentariat. I expect Fox News to get it wrong but I saw Pete Williams on The Last Word last night and he swung and missed with this comment:
So, you know, what happened here, I think, we have to do a little guessing on. It takes four votes to grant a case. So, for example, the four conservatives might have been expected to say we need to look at these lower court rulings that struck down bans against same-sex marriage in these states, but they would only do that, likely, if they thought they had a fifth vote to win, and that is Anthony Kennedy, and they may have well decided they don`t have him.
May well? The thing I’m certain that he knows better. Justice Kennedy may be a wild card on many issues but he will go down in history as the gay rights Justice. He’s written all three major opinions that have come down in the area since 1996. I guess I’ll write it off to fatigue or the need for drama on cable news but Williams is better than that. To extend the baseball analogy, this performance was more like Rob Deer than Ted Williams…
Marriage equality may not have been achieved where I live, but it’s on its way. The number of states with legal same sex marriage rose to 30 yesterday including states such as Utah and South Carolina. Think of that, South Fucking Carolina. Now Utah is used to unusual marital regimes, but the land of John C. Calhoun and Strom Thurmond? That added an extra touch of awesomeness to yesterday.
Sometimes inaction speaks louder than words. You can quote me on that.