U.S. Supreme Court

Clues in oral arguments suggest conservatives voted for cert in California gay-marriage case


During oral arguments last week in the challenge to a ban on gay marriage in California, clues emerged as to which justices voted to hear the case.

The New York Times focuses on a comment by Justice Antonin Scalia and suggests he may have been among those voting to hear the case. Four votes are needed for a cert grant, the newspaper explains. The exchange began when Justice Anthony M. Kennedy questioned whether the case was properly before the court.

According to the Times, Scalia had “a note of glee in his voice,” when he replied, “It’s too late for that now, isn’t it? … We have crossed that river.”

The Times assesses the likely vote to grant cert this way: “Justice Scalia, almost certainly joined by Justices Clarence Thomas and Samuel A. Alito Jr., apparently made a twofold calculation: that their odds of winning would not improve as same-sex marriage grows more popular and more commonplace, and that Justice Kennedy, who is likely to write the decision in the case concerning the 1996 law, would lock himself into rhetoric and logic that would compel him to vote for a constitutional right to same-sex marriage in a later case.

“It is not that the conservatives felt certain they would win. It is that their chances would not improve in the years ahead.”

The fourth vote for cert may have come from Chief Justice John G. Roberts Jr. or from Kennedy, the story says.

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