As it turns out, it would seem the conservative members of the court, making a calculation that their chances of winning would not improve with time, were behind the decision to take up the volatile subject. ...NYT
Apparently it was a gaggle of conservatives on the Court who decided to take the gay marriage cases and would seem to regret their decision.
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.
That leaves the question of the fourth vote. The most likely answer is that it was that of Chief Justice John G. Roberts Jr., though he did not sound at all pleased on Tuesday to have the case before him.
There is also a chance that the fourth vote came from Justice Kennedy himself, and his very questioning provides support for that theory.
“I just wonder,” he said, sounding a little plaintive and a little angry, “if the case was properly granted.”…NYT
All in all, it sounds like high stakes judicial poker. And now they wish they hadn’t had all that beer and — damn! — they should have stayed home and gone to bed early. But — damn again! — they just couldn’t resist…
I don’t think history will be kind to our Grand Inquisitors, do you?