The Supreme Court justices have finished hearing oral arguments on the Defense of Marriage Act, and the early word wasn't unlike what we heard and read Tuesday on Proposition 8: The Roberts Court might have concerns on ruling in the case of United States v. Windsor. Then came the big part of the hearing, with SCOTUSblog and others reporting we might get the big impression many were anticipating — the Court may vote this thing down, but Anthony Kennedy's argument about states' rights may spell trouble for the California marriage ban and gay marriage on a wider level.
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The big news comes from the valuable wonks over at SCOTUSblog who are predicting that there's an 80 percent chance (Nate Silver are you listening? Do you agree? Call us.) that DOMA gets struck down.
Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.
— SCOTUSblog (@SCOTUSblog) March 27, 2013
The four justices (which should come as no surprise) are Stephen Breyer, Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan. And HuffPo's Ryan Reilly has a similar perception :
But Jeffrey Toobin, as always, puts that "good" news in context, with the reality check from the swing vote, Kennedy:
The first impressions of the first portion of the DOMA hearing sound like the questions which dominated Tuesday's Prop 8. arguments — whether the Court should take up the federal benefits portion of the law because the two sides essentially agree and House Republicans don't have the so-called "standing" to defend it. The bigger part of DOMA — whether the 1996 law is constitutional — is being heard now, and that could lead to direct revelations about benefits for same-sex couples in the nine states (along with D.C.) where they are recognized as married.
But as for taking up the case, the justices may be as troubled by the Obama administration's turning its back on a law signed by President Clinton as they were when they hired a lawyer to argue this side of the case. And it could be an elaborate bluff by the conservative justices (remember the surprise of Obamacare and Kennedy not being the swing vote?). But SCOTUSblog sent out this message:
...Reuters ran this message on its wire service Wednesday morning during the Court's first break:
- U.S. SUPREME COURT CONSERVATIVE JUSTICES SAY TROUBLED BY OBAMA REFUSAL TO DEFEND MARRIAGE LAW
The all-caps make it seem ominous right?
And then came this from The Wall Street Journal:
Chief Justice Roberts repeatedly expressed irritation at the Obama administration, telling Ms. Jackson, the court-appointed lawyer, and without specifically mentioning the administration, that perhaps the government should have the "courage" to execute the law based on the constitutionality rather instead of shifting the responsibility to the Supreme Court to make a decision.
"It's very troubling," Justice Anthony Kennedy is quoted as saying by Reuters. Kennedy followed up and broke down the argument, basically stating that presidents shouldn't be enforcing things they don't think are constitutional, reports The WSJ:
Justice Anthony Kennedy cited the controversial and "questionable" practice of presidential signing statements as an example. He said if the president doesn't think a law is constitutional then he shouldn't sign it. And said the same principle perhaps applied in this case — meaning if the president believes the law is unconstitutional, he shouldn't enforce it.
That isn't unlike what we heard leaking out Tuesday—that Justices Kennedy and Roberts clearly stated their concerns about "standing," aka letting a private citizen defend public law, aka questioning whether the private citizen has any standing to defend a law that doesn't injure them and doesn't threaten to.
There's no real way to tell if the justices today are more or less "troubled" Wednesday than they were Tuesday. And to be clear, it's not like these justices are voicing their concerns out of the blue—the first portion of the Court's hearing Wednesday morning was supposed to focus on the jurisdiction: "Legal experts differ about the more general effect of a ruling that the Supreme Court lacks jurisdiction, but most agree that such a decision is unlikely and would, one way or another, effectively spell the end of the challenged part of the 1996 law," reported The New York Times's Adam Liptak.
Reporters and justices are now back listening to the second, and perhaps more intriguing part of the DOMA argument: whether the law is constitutional. Stay tuned.