I should probably defend my claim that there’s an outside chance that Thomas could join an opinion upholding the 1st Circuit’s opinion. I have a couple reasons for saying so:
- Thomas is the closest there is on the Supreme Court to being an exception to Lemieux’s dictum that Nobody Cares About Federalism. Gonzales v. Raich showed that Thomas, unlike Scalia and Kennedy, was willing to prioritize federalism over the policy preferences of Republican officials.
- Of course, marijuana prosecutions aren’t exactly a core priority either, and for Thomas as for everyone else when legal principles conflict with deeply held policy desires the latter will likely prevail if there’s any way of making the argument.
- So, the question is whether for Thomas same-sex marriage is a core issue or a more peripheral one, like medical marijuana. Scalia will obviously vote to reverse because he 1)cares a lot less about federalism than Thomas, and 2)cares a great deal about preserving discrimination against gays and lesbians. Thomas, however, distanced himself from Scalia’s culture warfare in his own Lawrence dissent, and it’s not clear how important same-sex marriage is to him.
This isn’t to say that I think there’s a really good chance that it will happen — DOMA is different than anti-sodomy laws. It also doesn’t really matter, because it’s impossible to imagine an anti-DOMA ruling that Thomas would join that Kennedy and the four Democratic appointees wouldn’t. But I wouldn’t be completely shocked if Thomas provided a sixth vote, and Roberts might go along in that case too. I would be very surprised if there weren’t at least 5 votes to uphold it, though.