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The Kennedy Question

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Dahlia Lithwick’s does a very good job here of analyzing the question of how Kennedy might vote on same-sex marriage, with her choice of commentary to link to being particularly astute and commendable. With my skepticism now on the record to a larger audience, I thought I’d quote the evidence that (aside from the general fact that Kennedy has a pretty decent record on gay and lesbian rights issues for a Republican appointee) provides the best reason for hope:

Which made it so surprising when, in 1996, Kennedy sounded such a sure and forceful note in Romer v. Evans, the Colorado case. Notes Ward, after Romer, retired Justice Harry Blackmun, who had written Roe v. Wade, sent Kennedy a note: “Monday’s decision took courage. You will now undoubtedly receive a lot of critical and even hateful mail. I have had that experience and still receive letters, some of them abusive, in almost every mail. Hang in there.” To which Kennedy replied, “No one told us it was an easy job when we signed on.” Ward also quotes a clerk from that term—not one of Kennedy’s—explaining why Kennedy so badly wanted to author the opinion: “Kennedy definitely wanted the case. … His big shtick was this was an exceptional case, this was an outrage. He wanted to sock it to the people of Colorado. The emphasis on motive, bad guys is very much Kennedy.”

The fact that in this case a (very slender) majority of California voters were voting to overturn a judicial ruling might in particular rub Kennedy the wrong way. It doesn’t change my view that Kennedy is unlikely to vote to uphold Perry if it comes to that, but…it’s something worth considering.

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