Update on SSM SCOTUS oral argument

[True Federalist (진정한 연방 주의자)]

A Mexican like solution of no state being required to recognize SSMs consecrated in them but requiring states to recognize SSMs consecrated elsewhere is moderate heroish enough that Kennedy might sign on to it, especially if it gets a 7-2 or even an 8-1 decision to be the result.  However, I won't like it one bit because of the erosion of federalism such a decision would entail.  (It's also why I don't care for Windsor.)  It'd be far better in my opinion to simply go ahead and use the core of the reasoning of Windsor and simply declare state recognition of SSM to be a right.) Gets the same result and avoids weakening federalism more than it already has been.

[True Federalist (진정한 연방 주의자)]

A Mexican like solution of no state being required to recognize SSMs consecrated in them but requiring states to recognize SSMs consecrated elsewhere is moderate heroish enough that Kennedy might sign on to it, especially if it gets a 7-2 or even an 8-1 decision to be the result.

7-2, 8-1, and 9-0 are all impossible. Alito, Scalia, and Thomas are not going to sign on to SSM in any way, shape, or form, period.

I agree they'll never vote to consider SSM to a right in and of itself. However, I could see Scalia or Alito possibly going for the quasi-Federalist argument if it keeps Kennedy from signing on to outright recognition of a such a right.  Roberts might be able to arrange that and he certainly has shown an interest in trying to avoid narrow decisions.  Even this is not likely, but I wouldn't say it's impossible.

[True Federalist (진정한 연방 주의자)]

So it's in June when they make the decision, right?

June is when their term ends and typically controversial cases won't be announced until the last week of the term. However, as soon they think they've reached a decision and there is nothing more to be gained from talking amongst themselves, they could issue their opinions, conceivably as early as Monday (their next scheduled date to issue decisions) tho I think mid-June is likelier.

With them having already staked out their major points in earlier cases, only if Kennedy is denied the chance to author yet another moderate hero opinion (which I really hope will be the case as he is probably the worst justice when it comes to trashing federalism in his quest to make rulings as narrow as possible) is there any need to wait until the very end.  Heck, he probably already wrote the first draft of his opinion before oral arguments were heard.

I'm hoping for Roberts to write the opinion with Kennedy submitting a miffed concurrence because he was denied the opportunity to make constitutional law even more of a moderate hero muddle. But that assumes that Roberts sides with the majority which is not certain.

[True Federalist (진정한 연방 주의자)]

SCOTUSblog said that the Roberts wouldn't really be able to moderate an opinion by joining it to make it 6-3, if it would already be 5-4 without him.

If Roberts is on the majority, he gets to decide who writes the opinion. And while the result won't be changed if he writes it instead of Kennedy, the reasoning might, and it could only be for the better as far as I'm concerned.

[True Federalist (진정한 연방 주의자)]

But if he changes the reasoning enough that the other five differ from him significantly enough, then he's not really in the majority anymore, I think is the point. He can't change things terribly much by joining a bloc that is already a majority without him.

Actually, he can. Assuming that the liberal four back a straightforward right to state recognition of SSM, then if Kennedy alone issued a narrower moderate hero opinion, that would become the controlling opinion. But if Roberts issues a different narrower opinion, then unless the liberal four explicitly back one and not the other there would be no controlling opinion which could be used as precedent in unrelated cases.

[True Federalist (진정한 연방 주의자)]

But if he changes the reasoning enough that the other five differ from him significantly enough, then he's not really in the majority anymore, I think is the point. He can't change things terribly much by joining a bloc that is already a majority without him.

Actually, he can. Assuming that the liberal four back a straightforward right to state recognition of SSM, then if Kennedy alone issued a narrower moderate hero opinion, that would become the controlling opinion. But if Roberts issues a different narrower opinion, then unless the liberal four explicitly back one and not the other there would be no controlling opinion which could be used as precedent in unrelated cases.

Seems like a big assumption, that the liberal bloc would just have no preference for one opinion over the other.

They could always prefer Roberts' opinion to another one of Kennedy's muddleheaded moderate hero opinions. More importantly, they have no need to give either Roberts or Kennedy the imprimatur of explicit support unless they actually have a preference between the two narrower approaches.