Oh My God The Obergefell Opinion Is Bad

Last summer, the Supreme Court decided the hideously-named Obergefell v. Hodges, which held that the Constitution protects what we on the left these days call marriage equality, i.e. that state laws defining marriage as between a man and a woman are unconstitutional. And... what with one thing and another I just never really got around to reading the case. Not the majority opinion, not the dissents. I heard some things about it. I heard that Kennedy did a lot of pronouncing about how wonderful marriage is, including a final paragraph the reading of which has apparently become a fixture at weddings. I heard that, as usual in these sorts of cases, his doctrinal analysis was a mess, and (as in Lawrence v. Texas) he was kind of unclear about whether this was an equal protection case or a "substantive due process" a.k.a. fundamental rights case. I heard that Chief Justice Roberts's opinion was far more fire-breathing culture warrior than I had been expecting after his curious dissent in U.S. v. Windsor. But I didn't read it for myself. Between those few snippets and my knowledge of Kennedy's previous gay rights jurisprudence I figured I had a decent kind of idea what the opinion said, and while it left a lot to be desired (aside from, y'know, deciding the case correctly), it had some interesting, maybe even promising stuff going on.

Well I just actually read the damn thing, and oh my god it sucks. It's waaaaaaaaaay worse than I had been imagining. First of all, about half the opinion isn't legal analysis at all, it's Anthony Kennedy Tells The Story of Marriage And How Wonderful It Is. Which first of all is just weird and kinda gross to read in the U.S. Reports. It's like Scalia's dissent in U.S. v. Virginia, the VMI case, where he includes the full text of the Virginia Military Institute's Code of a Gentleman at the end. This is just not something that belongs in a judicial opinion, not like this anyway. (As I'll note later, there could be a place for a little bit of this sort of thing in a better-crafted opinion, but Kennedy massively overdoses us on it.) Second, while there's some nice stuff in what he says, particularly the bits about how the changes that have been made to the institution of marriage over the centuries as women have achieved greater and greater social progress have strengthened and improved marriage, a lot of it is kind of gross on its own terms. He goes on and on about how wonderful marriage is, how it's a bond unlike any other, so ennobling, it's at the heart of human civilization, blah blah blah, and then he's like, hey isn't it great how these gay people love marriage as much as I do! They want in to our patriarchal (if slightly less than it used to be) institution, hooray!!! He literally goes so far as to say that "Were their intent to demean the revered idea and reality of marriage, the petitioners' claims would be of a different order." WTF, bro.

The Not Really Obligatory Character Analysis of the Court

Okay, so the last two posts canvassed the merits of the recent health care ruling and the longer-term impact of that ruling on jurisprudence. This one is devoted to speculative discussion of what's going on with the nine individual human beings sitting on the Court right now. Well, a few of them anyway: most of them offer pretty uninteresting analysis right now, going along as they always have. Who are the exceptions? Mostly John Roberts and Antonin Scalia, and the dispute between the two of them, though Kennedy appears to be up to something himself.

Polarization is not Extremism

People talk a lot about political polarization these days, and there's a general tendency to feel that increased polarization means increased radicalness, extremism, etc., at the expense of moderation and compromise. Well, that's not necessarily the case. Consider the following example, which is really polarization-meets-life-appointment. Right now, the U.S. Supreme Court is extremely polarized. Four Justices, Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg, and Steven Breyer, are rather consistently liberal in their rulings. Another four, Antonin Scalia, John Roberts, Clarence Thomas, and Samuel Alito, are consistently conservative. The ninth Justice, Anthony Kennedy, is a more moderate conservative, and a bit of a swing Justice. This means that, on essentially every case, Justice Kennedy can count on having four Justices to his left, and four Justices to his right, making him the marginal Justice every time. Or, to put it another way, Anthony Kennedy is the Philosopher-King of the United States, for he is almost guaranteed to be in the majority on every case no matter how he rules.