The Supreme Court’s decision in Perry that the parties defending the constitutionality of Prop 8 lack standing did not conform to the usual pattern in cases decided 5-4. Usually in such cases, we see the Court’s four liberal Justices — Ginsburg, Breyer, Sotomayor, and Kagan — voting one way while either four or five of the remaining Justices vote the other. Typically, if only four of these Justices vote together, Kennedy is the one who “defects.”
But in Perry, the five Justices who found no standing were Chief Justice Roberts and Justices Scalia, Ginsburg, Breyer, and Kagan (that’s two conservatives and three liberals, if you’re keeping score). The minority was made up of Justices Kennedy, Thomas, Alito, and Sotomayor.
How do we explain this unusual split. The most obvious explanation is that interesting “standing” cases no longer tend to split across predictable ideological lines. Ilya Somin makes this point at the Volokh Conspiracy.
In standing cases, however, there is always the suspicion that an ulterior motive plays a part in deciding whether to decide the case. One possible motive, of course, is the simple desire of the Court to avoid making a decision on the merits, e.g., for political reasons. Or, if a particular Justice believes the majority will decide a case incorrectly, he or she might try to produce a majority in favor of not deciding it.
Based on his opinion in the DOMA case, one suspects that if Perry had been decided on the merits, Kennedy would have joined the four liberals and affirmed the decision that Prop 8 is unconstitutional. And Kennedy was prepared to decide the case (one way or the other); indeed, he wrote the dissent arguing that the plaintiffs had standing to challenge Prop 8.
Accordingly, one can imagine Roberts and Scalia voting that there is no standing in order to avoid what they consider an adverse ruling. Similarly, one can imagine Sotomayor voting that standing exists in order to bring on the ruling she wanted.
But how do we explain Ginsburg, Breyer, and Kagan voting not to decide the case? Or Thomas and Alito voting to decide it?
Perhaps there was uncertainty about how Kennedy would vote. But why would he not tip his hand, when doing so might encourage four Justices (either the conservative bloc or the liberal one) to join him in holding that there is standing?
Do these considerations mean that the unusual 5-4 split was based on the Justices genuine views of the technical standing issue. Very possibly. Stranger things have happened.
Or maybe Justices Ginsburg, Breyer, and Kagan voted not to decide the case, against their ideological interest, because they wanted to avoid the fallout of a blockbuster decision finding a constitutional right to gay marriage, and to let the process by which gay marriage becomes lawful throughout the land play out more naturally (perhaps through a future Supreme Court decision when the country is less evenly divided on the issue).
Stranger things have happened.