Tom Goldstein, as shrewd an observer of the Supreme Court as anyone I’m aware of, believes that the Court “probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.” The Court could avoid reaching the merits by deciding that the defenders of Prop 8 lack standing to defend it, the State of California having declined to do so. It could also simply decide that it shouldn’t have agreed to hear the case. But Goldstein doubts that there are five votes for either of these results.
In any event, Goldstein is convinced that Justice Kennedy will not provide either side with the fifth vote needed to decide the merits of the case:
[Kennedy] was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.
Thus, for example, the Court might split 4-4 on the merits, with Kennedy refusing to reach them on, say, standing grounds.
If Goldstein is right that there aren’t five votes to decide the merits, the decision striking down Prop 8 will not be overturned. However, it will not receive approval from the Supreme Court.
I have made it clear that I don’t believe the Supreme Court has any business deciding the same-sex marriage issue. But, of course, neither do lower courts.
Thus, a decision ducking the issue isn’t satisfactory. Given the sad state of our constitutional jurisprudence, the Court’s best course would be to strike down the lower court’s decision and try to develop a more modest, limited view of the empire of courts.
A decision finding that the petitioners lack standing to defend Prop 8 would be particularly unsatisfying. For one thing, such a decision would be legally flawed.
For another, the decision would be profoundly undemocratic. It would mean that the voters of California lost their right to enact their will through a normal, quintessentially democratic process because the state’s politicians effectively vetoed their decision.
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