It seems apparent after the argument, though, that it was the conservative justices who opted to hear Proposition 8. It also seems that one factor in their decision was that this could be their last, best opportunity to slow the nation’s march toward recognition of gay marriage at a time when only nine states and the District of Columbia allow gays and lesbians to marry — despite a rapid swing in public opinion in favor of gay marriage.
From their comments and questions Tuesday, Justices Samuel Alito and Antonin Scalia indicated they preferred what they called the cautious approach: allowing the debate over gay marriage to play out in the states and not overturning by judicial fiat the will of California voters who approved Proposition 8 in 2008. Justice Clarence Thomas, as is his custom, said nothing during the argument, but he and Scalia were dissenters in the court’s earlier two gay rights cases in 1996 and 2003.
Chief Justice John Roberts also had tough questions for lawyers for the same-sex couples who sued for the right to marry, and for the Obama administration.
Scalia sought to counter Kennedy’s comment, and a similar one from Justice Sonia Sotomayor, that maybe the court should get rid of the case.
“It’s too late for that, too late for that now, isn’t it? I mean, we granted cert,” Scalia said, using the legal shorthand for the court’s decision to hear a case. “We have crossed that river, I think.”
Once or twice a term, occasionally more often, the justices do dismiss cases after they have been argued, without rendering opinions and establishing a rule for the whole nation. The language they use is the wonderfully vague “dismissed as improvidently granted.” Roughly translated, it means “sorry for wasting everyone’s time.”
That is one potential outcome, discussed publicly by Kennedy and Sotomayor.