The Apocalypse? Or Is It Just Me?

[furtech]

Very happy for many of my friends with regards to the Supreme Court decisions regarding marriage. Mazel tov!

However...when I read who was on the majority of the Prop. 8 decision, my brain exploded.

Scalia and Roberts helping to strike down Prop. 8??!WTF?

Kennedy and Sotomayor dissenting??!?

If there were a betting pool, I SO would have lost money with any combination of judges I would have thought possible.

Now, the HuffPost did explain:
If March's oral arguments were any indication, the justices' unusual alliances on Wednesday -- Scalia and Roberts with three liberals in the majority and Sotomayor joining Kennedy and two conservatives in dissent -- would have realigned to their usual ideological divides had they at all even noted Proposition 8's constitutional merits in their opinions.

Still...if anyone has a *simple* explanation for this juxtaposition of judges, I'd love to hear it.

Comments

[typographer.livejournal.com]

It's actually pretty clear.

On initial vote they probably had four camps:

At least two wanted to overturn on the merits and declare that there is no constitutional right to marriage for same sex couples, period.

At least two wanted to overturn because the proposition was enacted by a vote of the people, and since it seems clear that if the court didn't act, another proposition to repeal would be placed on an upcoming ballot, they might as well let that process continue.

One or two wanted to dismiss on standing and let the issue "cook" among the states for a while.

At most three wanted to uphold on the merits, and declare a constitutional right to marriage equality.

Then the circulation of draft opinions began (according to a number of biographies of former justices that is how they debate).

I think it became clear to Ginsburg that if four of the justices moved to the overturn on the merits position, that Roberts would switch to that position and marriage equality would be set back for years. Similarly, it was clear to Scalia that if four would go for upholding, that Roberts would go with them, thus ending bans on marriage equality everywhere.

So, for strategic reasons, both of them joined the dismiss on standing camp, Roberts joined, and we have a majority ruling that Roberts can claim is neutral. Ginsburg and Scalia have opposite reasons for doing it. For Ginsburg, dismissing on standing means marriage equality comes to California, and that's one more state. For Scalia, it means that marriage equality isn't declared, so it still leaves 37 states where he and his ilk feel safe.

[furtech.livejournal.com]

This...is EXACTLY the explanation I needed!! Thanks!

Particularly useful to me was the vote strategy-- the different scenarios (annotated) and the individual considerations as influenced by the bigger strategies. You have summarized this in a way that is perfectly clear and succinct.