Kennedy’s Stealth Victory

by Ed Whelan

At least one of the four conservative justices on the Supreme Court voted against reviewing the state SSM cases, and none of the four has registered a peep over the Court’s irresponsible denial of review in the cases. As a result, Justice Kennedy’s stew of confusion in his anti-DOMA ruling has been allowed to lead to the judicial imposition of SSM in Virginia, Utah, Oklahoma, Indiana, and Wisconsin—and presumably in all the other states in the Fourth, Seventh, and Tenth Circuits.

In the event that another federal appellate court rules in favor of state marriage laws, the Court’s action seems to pre-ordain that the Court, if it grants review, would overturn such a ruling. For it is difficult to imagine that the Court would let the current judgments against marriage go permanently into effect in those states and then rule in cases from other states that there is no constitutional SSM right. [Update: I’ve tweaked the preceding sentence.] (It’s conceivable, I suppose, that the Court could deny review of a federal appellate ruling upholding state marriage laws—and thus permit a sort of weird federalism (weird because it depends  primarily on the composition of the appellate panel)—but that seems very unlikely, both because there would then be a circuit conflict and because the liberal justices and Kennedy are unlikely not to press their evident advantage.)

Bench Memos

NRO’s home for judicial news and analysis.