Although it’s a fool’s errand to prognosticate the Supreme Court’s ruling, nobody should get their hopes too high

Posted by Mike Merritt in Constitution on | No Comments

EqualityHere we go again! Today the media, no doubt feeling the need to amp up what were already interesting proceedings in the oral arguments for Hollingsworth vs. Perry, tried to make predictions on the ultimate ruling of the case, based solely on the questions asked by the justices to the lawyers from both sides.

The conclusion? That because some of the justices didn’t seem to be on board with a national ruling striking down laws banning gay marriage, that the case is somehow already decided.  Notably, that commentary made by some justices, even those on the liberal wing, may indicate that they will rule to toss the case entirely:

As the Supreme Court on Tuesday weighed the very meaning of marriage, several justices seemed to have developed a case of buyer’s remorse about the case before them. Some wondered aloud if the court had moved too fast to address whether gay and lesbian couples have a constitutional right to marry.

“I just wonder if this case was properly granted,” said Justice Anthony M. Kennedy, who probably holds the decisive vote.

Justice Sonia Sotomayor said there may be value in letting states continue to experiment. “Why is taking a case now the answer?” she asked.

These and other comments were used to pound the message that basically said: “It’s already doomed.”  Of course, that’s hogwash. It’s not doomed because no votes have been taken and no opinion has been written. And it’s not doomed even if the justices toss the case. That’s because there’s a few ways the case could be decided (major hat tip to Doug Mataconis at Outside the Beltway and Tom Goldstein of SCOTUSblog):

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