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June 26, 2013

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Orin Kerr

It's quite possible -- if not quite likely -- that at least some of the liberal Justices agreed to join Justice Kennedy's opinion only on the condition that he added pro-SSM language to his majority opinion. If that's right, they weren't silent: they just don't have their names attached to the pro-SSM language that is now in a majority opinion of the Supreme Court.

Charles Paul Hoffman

This goes to a point I've made for years - there are no genuine liberals, in the sense we used to understand that term in the 60s-80s, on the Court today. We instead have a "liberal" block that would largely fit in with the moderate Republican nominees of that period, Kennedy and perhaps Roberts where the older Conservatives would have fit, and the rest well to the right of anyone since the 1930s/40s. Occasional we get "liberal" results, but it is all of the gradual sort, and we no longer see the barn-storming dissents and concurrences on the left, only the right.

SCJ

Isn't the inference opposite of Kerr's also plausible? That is, Kennedy (either b/c he didn't want to nationalize SSM or is waiting to make up his mind on the matter) made clear that the liberals ought to be on board w/ his doctrinal hybrid of an opinion (parts of which can be read favorably by either side in the "next Perry"), lest the liberals get a factured 4-1-4 decision where they write a robust pluarality but whatever Kennedy writes is still controlling. Better to be 5-4 with Kennedy controlling than 4-1-4 with Kennedy controlling, so the thinking may go.

This reasoning might also explain why Kennedy's dissent in Perry didn't proceed to the merits, a somewhat atypical approach (compare, Scalia's dissent in Windsor). Maybe Kennedy is not yet sure that he wants to go "all the way" on SSM. So he avoided it in Perry by not writing to it, and wrote Windsor so that nationalized SSM is not a strictly neceessary (but still possible) future consquence of that opinion.

But I'm just spitballing.

Michael J.Z. Mannheimer

That's plausible but Orin's account is more likely, I think. It helps explain why the majority opinion is so muddled, attempting to ride two horses (equality and federalism) at the same time. Justice Kennedy wanted to hold together his coalition. True, the other four are better off with a Justice Kennedy majority opinion than a Justice Kennedy plurality opinion. But the same can be said of Justice Kennedy. First, I'm not sure the extent to which a Justice Kennedy opinion written just for himself on federalism grounds would have been viewed as "controlling," given that it would have espoused a position endorsed by exactly one Justice. Justice Powell's opinion in Bakke has always been seen as vulnerable because it was only, well, Justice Powell's opinion. Indeed, unlike the Bakke opinion, I'm not even sure a hypothetical Justice Kennedy opinion based purely on federalism would have been controlling for Marks purposes, given the lack of any overlap between such an opinion and the hypothetical concurrence based on equality principles. Moreover, to the extent such an opinion would be viewed as controlling, it would not have given Justice Kennedy the same sense of pride as an opinion for the Court: think the Chief Justice's opinion in NFIB.

Alex

Any thoughts on the comments from Professor John McGinnis about Windsor at yesterday's 4th Circuit Judicial Conference?

“And I’m sorry to say, I think this opinion was as singular a failure as I’ve seen in the history of the Supreme Court.” (http://www.c-span.org/flvPop.aspx?id=10737440263 at 1:09:07)

David S. Cohen

That's quite a statement given the Dred Scot and Plessy!

Anderson

Dred Scott and Plessy were more soundly reasoned.

David S. Cohen

If you want to cast your lot on that side of history, go ahead.

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