Sunday, May 31, 2015

'Guerrilla War' Against Lethal Injections?

      The Roberts Court conservatives wax genuinely rhapsodic about the constitutional rights of well-funded candidates and political groups. But they are apparently less enamored of the political speech activities of opponents of capital punishment.
      When the Supreme Court heard arguments late last month in the latest challenge to lethal injections, two of the conservatives could not contain their distaste for what one called a “guerrilla war” against the death penalty. The death row inmates in the case, Glossip v. Gross, are contending that the drug Oklahoma plans to use to start the three-step procedure will not render them unconscious and will leave them fully aware of agonizing pain as the next two drugs are administered.
      Oklahoma and other states have been forced to improvise after European drugmakers stopped providing the barbiturates formerly used to put inmates into a coma-like state at the start of the procedure. The companies acted for their own commercial reasons — who needs the bad publicity? —  but also because of a European Commission directive that effectively prohibits use of the drugs for executions.
      In the arguments last month [April 29], Justice Samuel A. Alito Jr. saw the resulting standoff as an effort to undermine democracy in the United States. He noted that death penalty opponents have failed to persuade the court to rule the death penalty unconstitutional and have had only limited success with repeal efforts in state legislatures.
       “Until that occurs,” Alito continued, “is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?”
      Alito’s critique wrongly conjures up images of massive civil disobedience or direct action by death penalty opponents. Justice Antonin Scalia picked up the theme but with less inflammatory language. The drugs formerly used at the start of lethal injections “have been rendered unavailable,” Scalia said, “by the abolitionist movement putting pressure on the companies that manufacture them.”
      A law professor who has studied the events acknowledges that Alito is correct in seeing a concerted effort to make lethal injections more difficult but disagrees with the justice’s language. “It doesn’t strike me as guerrilla warfare,” says James Gibson, an associate dean at the University of Richmond Law School,
       “The drug shortage is largely the result of political opposition to the death penalty,” says Gibson, who co-authored an article forthcoming in the Georgetown Law Journal. Most of the opposition is in Europe, Gibson says, but U.S. opponents are participating as well.
      Still, Gibson sees Alito’s critique as legally irrelevant. “It surely can’t be the case that a drug shortage that results from political speech is less legitimate than one that results from say a problem in the supply chain,” he says. In the article, Gibson depicts the drugmakers’ actions as a response to what he calls the “international moral marketplace.”
      At the Supreme Court, the inmates’ attorney, Robin Konrad, also insisted that the political background was irrelevant to the legal issues. “The purpose of the courts is to decide whether a method of execution or the way that the state is going to carry out an execution is in fact constitutional,” Konrad, an attorney with the federal defender’s office in Arizona, told Alito. The court in 2008 said that an execution procedure would be unconstitutional if it entailed “a substantial risk of serious harm” (Baze v. Rees).
      Oklahoma says it has been unable to obtain either of the two drugs previously used to start lethal injections, the barbiturates sodium thiopental and pentobarbital. These are recognized anesthetics capable of putting an inmate (or patient) completely under. Instead, Oklahoma and other states are using midazolam, a sedative pharmacologically akin to Xanax and Valium.
      The evidence from some midazolam executions, including Oklahoma’s “botched” execution of Clayton Lockett in April 2014, shows the drug does not produce a painless death as intended in lethal injections. Lockett regained consciousness after administration of the sedative; it took more than 40 minutes for him to die.
      The state delayed executions and tweaked its procedures after the Lockett fiasco, but it used midazolam again on Jan. 15 to execute Charles Warner, one of the inmates who originally brought the new challenge. “My body is on fire,” Warner was heard to say before the microphone in the death chamber was turned off.
      In the lower court, Judge Stephen Friot rejected as “speculation” the inmates’ argument that the use of midazolam created the risk of severe pain, needless suffering, and lingering death. He leaned heavily on testimony the state offered from a pharmacologist who cited an Internet web site as evidence of midazolam’s supposed coma-like effect.
      Lethal injection emerged as the universal method of execution in the United States as part of a 200-year evolution toward more humane methods of putting the condemned to death: hanging and firing squads in the 19th century, the electric chair and gas chamber in the 20th. 
      No one disputes that burning the condemned at the stake would be cruel and unusual punishment under the Eighth Amendment. But as Justice Elena Kagan pointed out in the oral argument, that is exactly what the inmates say may happen if midazolam is used. They say that risk is intolerable. The Supreme Court has until the end of June to decide.

Monday, May 25, 2015

On Marriage, Following the Election Returns

      Fittingly, it was the Irish American political observer Mr. Dooley who observed more than a century ago that the Supreme Court follows the election returns. If Mr. Dooley is still right, the nine justices considering marriage rights for same-sex couples in the United States must all have read the news of Ireland’s decisive popular vote last week to legalize same-sex marriage in the Emerald Isle.
      In fact, Chief Justice John G. Roberts Jr. has been following the politics of the marriage issue closely. Two years ago, he told the lawyer seeking to invalidate the anti-gay Defense of Marriage Act that she did not need the court’s help to prevail. “As far as I can tell, political figures are falling over themselves to endorse your side of the case,” Roberts said.
      This year, Roberts again signaled a desire to let politics instead of law take care of the issue when the justices heard arguments in March. Speaking to the lawyer seeking to invalidate anti-same sex marriage laws in four states, Roberts said that it was “truly extraordinary . . . how quickly has been the acceptance of your position across broad elements of society.”
      Roberts continued with a curious suggestion that he follows polls, but not necessarily on a daily basis. “I don’t know what the latest public opinion polls show,” Roberts said. But he went on to note the opposite results in statewide voting in Maine over a three-year period: against same-sex marriage in 2009 and in favor in 2012.
       “That sort of quick change has been characteristic of this debate,” Roberts went on. “But if you prevail here, there will be no more debate. I mean, closing the debate can close minds. And it will have a consequence on how this new institution is accepted.
       “People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by courts.”
      Roberts cited no evidence for his supposition of an anti-judicial backlash, but the closest historical parallels suggest he is wrong. The Supreme Court struck down laws banning interracial marriage in 1967; opposition to such laws has steadily increased ever since, according to data cited by political scientist Patrick Egan in The Washington Post’s blog The Monkey Cage.
      Support for a right to elective abortion has remained generally steady since Roe v. Wade (1973), according to Egan’s figures, despite the fierce opposition and complex efforts to restrict the right. And support for same-sex marriage has only increased since the wave of federal court rulings adopting marriage rights for gays and lesbians one state at a time since December 2013. In the most recent poll, Gallup found 60 percent of respondents in favor of allowing same-sex couples to marry, four years after having first passed majority support.
      The results of the Irish referendum could be seen as an argument for letting the political process play out here in the United States. The decade-long campaign for marriage rights slowly changed Irish hearts and minds. At the ballot box on Friday [May 23], the Irish approved a constitutional amendment to allow same-sex marriage with 62 percent of the vote. The victors were exultant, the opponents gracious in defeat.
      The United States has no mechanism for a national referendum, of course. Constitutional amendments are difficult and rare. Take out the first ten, the Bill of Rights, and the other 18 amount to less than one per decade, three of them the product of a bloody Civil War. And there is every indication from opponents in the United States that they will not concede graciously.
      The Supreme Court’s role in enforcing constitutional rights still stirs debate two centuries after Marbury v. Madison (1803). Witness Mike Huckabee’s suggestion on Fox News Sunday [May 25] that the president and Congress are not bound by a Supreme Court decision. “The notion that the Supreme Court comes with a ruling and that automatically subjects the two other branches to following it defies everything there is about the three equal branches of government,” Huckabee told Fox anchor Chris Wallace.
      Under the Supreme Court’s normal procedure, the die on same-sex marriage has already been cast. The justices met in conference on April 29, the day after the marathon two-and-a-half hours of argument in Obergefell v. Hodges. Roberts spoke first, followed by the other eight in order of seniority.
      Most handicappers predicted a 5-4 vote with Kennedy, not Roberts, assigning the opinion as the senior justice in the majority. But Margaret Marshall, the former Massachusetts chief justice who authored the first of the state decisions allowing same-sex marriage, forecast a 6-3 or even a 7-2 ruling in favor after having been in the courtroom for the arguments.
      Will the Irish referendum change any votes at One First Street? Perhaps the opinions will give a clue. Perhaps there will be leaks, or perhaps history will have to await the release of the justices’ papers decades from now. But this much is clear. With same-sex marriage recognized in Canada and virtually all of Western Europe, the United States is a conspicuous holdout among major democracies.
      Polls in the United States show what Egan calls “a broad national consensus” in favor of marriage equality. The court can stand in the way or it can follow the election returns.

Sunday, May 17, 2015

Judges Dialing for Dollars? Supreme Court Says No

      The Supreme Court’s decision to uphold ethics rules prohibiting judicial candidates from directly soliciting campaign contributions is easy to minimize. But the ruling in Williams-Yulee v. Florida Bar [April 29], surprisingly written by Chief Justice John G. Roberts Jr., should not be dismissed as inconsequential because the alternative would have made judicial elections much worse than they already are.
      Imagine judges and would-be judges in 39 judicial election states dialing for dollars unencumbered by ethical prohibitions and encouraged to view the practice as a constitutional right. The Supreme Court’s actual decision instead upheld Florida’s rule, akin to those on the books in 29 other states, that bars judges or judicial candidates from personally asking for money to run their campaigns.
      Two other states, Georgia and Kentucky, had adopted such bans but they had been struck down by federal appeals courts, in 2002 and 2010 respectively. The Kentucky Supreme Court reinstated its ban one week after the ruling [May 6], but the head of Georgia’s Judicial Qualifications Commission said there were no immediate plans to revive its former rule. The Supreme Court’s ruling dispels doubts about the rule and might stimulate interest in other judicial election states to consider adopting it.
      The actual impact of the bans is easy to play down. The rules uniformly ban direct solicitations but allow a judge or judicial candidate to create a campaign committee to solicit and manage campaign funds and to solicit expressions of support from lawyers.
      Florida’s interpretation of the rule, the justices were told, also allows a judicial candidate to provide a list of prospective donors to the campaign committee and to write thank-you notes to donors afterward. “There’s a problem that judges can say thank you but not please,” says Jed Shugerman, an associate professor at Fordham University School of Law in New York City and author of The People’s Courts: Pursuing Judicial Independence in America.
      More broadly, the case did not address at all the issue of the rising cost of judicial campaigns and the spending by special-interest groups, especially business interests and anti-crime organizations. In a friend-of-the-court brief, the Brennan Center for Justice at New York University Law School reported that spending solely on state supreme court races had more than doubled from $83 million in 1990-99 to $230 million in the succeeding decade: 2000-2009.
      “The case was never about spending,” said Ernest Myers, the Orlando lawyer who represented the reprimanded, unsuccessful judicial candidate Lanell Williams-Yulee in the case. “Judicial candidates are free to raise as much money as they can possibly raise.”
      Indeed, Roberts said nothing about the overall cost of judicial campaigns in his opinion, which was joined in full by liberal justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan and in part by Ruth Bader Ginsburg. But Ginsburg wrote a partial concurrence, joined by Breyer, with an ominous warning. “Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence,” she wrote.
      The bans on judicial candidates’ fundraising stem from a provision that the American Bar Association included in its Model Code of Judicial Conduct in 1971. The bans represent the third twentieth-century imitative to try to depoliticize judicial races somewhat. Early in the century, the progressives pushed nonpartisan elections for judicial races, the practice in Florida and just under half of the other election states. In the 1930s, bar and judicial reform groups pushed the so-called Missouri plan, which combines merit selection followed by yes-no retention elections.
      The Missouri plan, widely adopted for appellate and supreme court justices, has not succeeded in protecting them from political attack. Law-and-order campaigns ousted three California Supreme Court justices in 1986 and one Tennessee justice in 1996; three Iowa justices who voted to recognize same-sex marriage in 2009 were defeated the next year.
      Shugerman acknowledges the problems with money in judicial elections. “You can argue that judicial elections are so corrupting that any of these measures just puts a fa├žade on them,” he says. Still, he applauds the Supreme Court’s ruling. “It recognizes that judges are different from other public officials and that the appearance of impartiality is a compelling public interest,” he says.
      In oral argument, Roberts had appeared to be a likely vote to strike down the rule after questioning the rule as both overly broad and somewhat ineffective. In his opinion, however, Roberts appears to have been swayed by arguments like those raised by Breyer and Sotomayor that lawyers solicited for funds from a judicial candidate have a very hard time saying no.
       “The identity of the solicitor matters as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest,” Roberts wrote. “When the judicial candidate himself asks for money the stakes are higher for all involved.”
      Gregory Coleman, a West Palm Beach lawyer about to complete his one-year term as Florida Bar president, dismissed the criticism that judicial candidates eventually learn the names of donors anyway. “The flip side is that the judge doesn’t know who doesn’t contribute,” he explains. 
      Coleman says that direct fundraising by judges or would-be judges “is distasteful, unacceptable, and intolerable.” Most states had come to that conclusion even while retaining judicial elections. The Supreme Court could have made the system more distasteful. Be grateful for the 5-4 favor that it did not.

Sunday, May 10, 2015

Religious Liberty as 'Refuge' for Marriage Equality Foes

      Patriotism is the last refuge of a scoundrel, Samuel Johnson once wisely observed. Today, in like vein, religious liberty has become the last refuge of those who oppose marriage rights for gay and lesbian couples.
      The “scoundrels” on this issue include an array of public officials and opponents of same-sex marriage up to and including Supreme Court Justice Antonin Scalia. Scalia made the implausible suggestion in Supreme Court arguments in the same-sex marriage cases that clergy members might be forced to officiate at gay or lesbian weddings despite religious objections.
      “The minister, to the extent he’s conducting a civil marriage, is an instrument of the state,” Scalia remarked in a colloquy with the lawyer representing same-sex couples in the cases. “I don’t see how you could possibly allow that minister to say, ‘I will only marry a man and a woman. I will not marry two men.’”
      The government’s only solution, Scalia suggested, was to deny any objecting clergy the power to perform civil marriages at all. “I don’t see any answer to that,” Scalia concluded. “I really don’t.”
      Three of Scalia’s colleagues batted down the suggestion through their own colloquies with attorney Mary Bonauto. Justice Sonia Sotomayor noted that some states already have antidiscrimination laws protecting gays and lesbians. Have any ministers been forced to perform same-sex marriages in those states, she asked. “Of course not, Your Honor,” Bonauto replied.
      Scalia did not relent, insisting that a constitutional requirement would not allow exceptions permitted under a state law. After Bonauto replied on her own, Justice Elena Kagan joined the fray, suggesting disingenuously that “maybe” she was “just not understanding Justice Scalia’s question.”
      “There are many rabbis that will not conduct marriages between Jews and non-Jews, notwithstanding that we have a constitutional prohibition against religious discrimination,” Kagan observed. “And those rabbis get all the powers and privileges of the state even if they have that rule.”
      Justice Stephen G. Breyer briefly underscored Kagan’s point by quoting the First Amendment: “It’s called Congress shall make no law respecting the freedom of religion.” Still at it, Scalia asked Bonauto whether she agreed that ministers would not be forced to conduct same-sex marriages. “If they do not want to, that is correct,” Bonauto replied. “That is affirmed under the First Amendment.”
      Two weeks before that argument, my journalistic colleague Garrett Epps had published a column on Atlantic.com that debunked the issue even more effectively. Epps said that his extensive research had turned up only one case in which a minister had been subject to legal action for refusing to marry a couple specifically, a Kansas pastor who refused to marry an interracial couple in the 1980s.
      The Rev. William Barclay, a Baptist minister in Wichita, was briefly jailed after a local prosecutor charged him with violating the state’s law against racial discrimination, according to Epps’ account [April 14]. But the Kansas Supreme Court ordered the case dismissed. “The parties have not cited, nor has our research revealed, a single case from any jurisdiction within the United States where criminal prosecution of a minister has been attempted under even remotely comparable circumstances,” the court stated.
      Back at the U.S. Supreme Court, Justice Samuel A. Alito Jr. raised the religious freedom issue in a slightly different context with Solicitor General Donald Verrilli. Alito noted that the court in 1982 had upheld the government’s decision to deny tax-exempt status to the religiously affiliated Bob Jones University because the school objected to interracial dating. Verrilli replied noncommittally, but acknowledged, “It’s going to be an issue.”
      That colloquy has now been bowdlerized in a report by Fox News correspondent Shannon Bream, who posted an article [May 6] suggesting that churches, not religious colleges, could lose tax-exempt status if they refused to marry same-sex couples. Debunking the piece, the Fox News monitoring group Media Matters quoted Caroline Mala Corbin, a professor at the University of Miami Law School, as calling the threat against churches “highly unlikely.”
      At ground level, opponents of marriage equality have been waving the religious freedom flag ever more vigorously as same-sex marriage rights have advanced. A photographer in New Mexico and a baker in Oregon are the poster children for the groups claiming a religious liberty right for commercial enterprises to refuse to provide services for same-sex weddings.
      State courts in New Mexico and the state civil rights agency in Oregon rejected those claimed religious exemptions from civil rights law, but the issue persists. And public officials in some red states are encouraging the notion that marriage clerks are free to refuse to sanction same-sex unions. A scattering of clerks have refused in several states; Utah enacted a law specifically allowing court clerks that option.
      The religious right has been laying the groundwork for this guerrilla campaign for a while. The issue is all the more important now that federal courts across the country have rejected the opponents’ other arguments for disapproving same-sex marriage. The religious accommodation bills in the news this spring have been deflected, but expect more such liberty-wrapped initiatives if the Supreme Court recognizes marriage rights for same-sex couples in June. But another old English aphorism is worth recalling: you can’t make a silk purse out of a sow’s ear.

Thursday, May 7, 2015

NSA's Telephone Data Collection Ruled Illegal


     The government’s supersecret National Security Agency (NSA) has been illegally collecting and storing records of your telephone calls, emails, and texts at least since 2006 under the authority of a law Congress passed but never intended to be used that broadly.
      That is the strongly-worded conclusion of a federal appeals court decision that found the NSA’s so-called telephone metadata collection program illegal as a statutory matter and at least problematic in constitutional terms.
     The 110-page ruling by the New York-based Second U.S. Circuit Court of Appeals in ACLU v. Clapper might be called the Edward Snowden Whistleblower Decision in honor of the disclosure of the previously secret program by the one-time NSA apparatchik. Snowden, now in self-exile in Russia, unmasked himself in June 2013 as the source for stories in The Guardian and The Washington Post that described the program and the previously secret ruling upholding it by the Foreign Intelligence Surveillance Court (FISC). (See “A Needed Debate on Surveillance Programs,” Jost on Justice, June 16, 2013).
     The American Civil Liberties Union went to federal court promptly to challenge the program as a mass invasion of privacy never authorized by Congress nor permitted under the Fourth Amendment’s prohibition against unreasonable searches and seizures. James Clapper is director of national intelligence. It is a measure of the importance of the program to the national security establishment that government lawyers have vigorously defended it in court even as President Obama called for legislative fine-tuning.
     The program has continued unabated, with stout defense by Clapper and others, even as two legal challenges moved through federal courts: one in New York, the other in the District of Columbia. In New York, U.S. District Court Judge William Pauley ruled the ACLU had no standing to bring the suit; in the Washington case, Klayman v. Obama, Judge Richard Leon found legal standing for the suit and went on to rule the program illegal.
     The Second Circuit panel, consisting of three Democratic-appointed judges, heard arguments in September; at the District of Columbia Circuit, a panel of three Republican-appointed judges heard arguments in November. But both courts may be in the position of closing the barn door (or not) after the horse got out. The program is due to sunset on June 1, and opposition by libertarian-minded lawmakers on the left and right make it unlikely the program will be reauthorized in its present form.
     On that basis, Orin Kerr, a Fourth Amendment expert at George Washington University Law School and Volokh Conspiracy blogger, discounts the decision as “mostly symbolic.” As symbolism, however, the Second Circuit decision teaches an important lesson about the need for checks-and-balances in wartime in this case, the so-called “war against terror.”
     The NSA instituted the program under the supposed authority of the PATRIOT Act, the omnibus anti-terrorism statute that Congress passed within weeks of al Qaeda’s Sept. 11, 2001, attacks on the United States. Civil liberties groups and some Democratic lawmakers raised questions about the breadth of the provisions, but Congress, President George W. Bush, and the general public were in no mood to listen.
     Still, the Second Circuit’s decision makes clear that hardly anyone outside the intelligence establishment, the Foreign Intelligence Surveillance Court, and some members of the intelligence oversight committees understood how far the NSA had taken the law. In its operative section 215, the act authorizes the government to obtain any “tangible thing” based on a showing that it was “relevant to an authorized investigation (other than a threat assessment)” conducted under guidelines issued by the attorney general (emphasis added).
     The NSA proceeded to get all the major telecommunications carriers to turn over records in bulk — so-called telephony metadata. Once the program was disclosed, the agency and its defenders explained that agents were not listening to calls or reading messages, only collecting and storing the records of the calls and messages to look later for possible patterns of possible terrorist activities.
     The three-judge panel, including two former federal prosecutors, would have none of it. To begin, the court noted a study in Science that showed one could identify a telecommunications user 90 percent of the time with as few as four data points (e.g., credit card transactions). So much for anonymity on the ’Net.
     Writing for the panel, Judge Gerard E. Lynch then parsed the statute and rejected the government’s proposed interpretations of the critical phrases. Lynch conceded that relevance can be defined broadly in grand jury investigations, but the “all-encompassing” definition urged in this case he found “unprecedented and unwarranted.” And the mass collection and storage of information, he said, “essentially reads the ‘authorized investigation’ language out of the statute.”
     Oddly, the court declined to issue a preliminary injunction to force the government to suspend the program immediately. Lynch noted the scheduled expiration of the program and the uncertainty on Capitol Hill about reauthorization. Meanwhile, the D.C. Circuit panel, with three strongly conservative judges, seems quite likely to rule the other way, setting the stage for the Supreme Court to resolve the issue unless the whole dispute is deemed moot.
     Today, however, the ruling produced a rare outbreak of bipartisanship on Capitol Hill. The top two Republicans and top two Democrats on the House Judiciary Committee joined in praising the decision. “The bulk collection of data,” the lawmakers said, “is not authorized under the law and is not accepted by the American people.”

Sunday, May 3, 2015

Kennedy at the Rubicon on Marriage

          Anthony M. Kennedy was a young and fairly new federal appeals court judge in 1980 when he first showed latent support for gay rights in a judicial opinion. In a decision upholding the Navy’s discharge of three service members for “homosexual acts,” Kennedy deferred to military authorities, but he added a sentence suggesting that outside the military the Constitution might protect “consensual private homosexual conduct.”
          In recalling the decision last week on the eve of the Supreme Court’s hearing in the same-sex marriage cases, the Los Angeles Times’s veteran reporter David Savage wrote that “almost no one foresaw” that Kennedy would become “the Supreme Court’s most important voice on gay rights.” You’ll have to take my word for this, but I took note of Kennedy’s opinion as editor of the Los Angeles Daily Journal in the 1980s while working on a story about another gay military discharge case.
          In Washington a couple of years later, I thought about the case when I confidently described Kennedy as a moderate conservative after his appointment to the court. Eight terms later, I was not surprised when Kennedy wrote for the 6-3 majority in Romer v. Evans (1996) striking down Colorado’s anti-gay rights initiative.
          Inside the courtroom on the final day of the 2002-2003 term, I clenched my fist into a silent cheer when Chief Justice William H. Rehnquist announced that Kennedy had the opinion for the court in the anti-sodomy law case, Lawrence v. Texas (2003). Some gay men in the courtroom were said to have teared up as Kennedy summarized the decision from the bench, in his full-earnest mode. For me, less than four years after having come out myself, there were no tears, only the heart-racing excitement any reporter would experience as witness to an historic event.
          Ten years later, I was fairly confident that the court would strike down the Defense of Marriage Act (DOMA) but uncertain about what it would do with California’s anti-gay initiative Proposition 8. With Kennedy’s opinion in United States v. Windsor (2013) striking down DOMA’s major provision and the Prop 8 case ducked, I began confidently predicting that Kennedy would join and likely lead an eventual majority in favor of marriage rights for same-sex couples.
          To borrow my colleague’s phrase, almost no one foresaw how quickly the marriage issue would return to the court. Certainly, I didn’t. And, it would appear, Kennedy didn’t either. Thus, Kennedy worried out loud in his first comments during the oral argument last week [April 28] in Obergefell v. Hodges about the pace of change on the issue.
          With Lawrence on the books for only “10 years” (actually, almost 12), Kennedy asked whether the court should be changing a definition of marriage that goes back for “millennia.” “There has not really been time,” Kennedy remarked, “for the federal system to engage in this debate, the separate states.”
          Later on, Kennedy also discounted any of the social science that same-sex marriage advocates had cited to show, for example, that children do well when raised by same-sex parents. “It seems to me then that we should not consult at all the social science on this,” he told the plaintiffs’ lawyer, Mary Bonauto, “because it’s too new.”
          Kennedy became much more animated, however, when he confronted the lawyer representing the states, former Michigan solicitor general John Bursch. Kennedy had spoken of the importance of “dignity” in the gay rights context as early as 1986, but Bursch argued that the state’s “entire interest” in marriage was strengthening parent-child bonds and not all “dignitary bestowing” for the spouses.
          “Just in fairness to you,” Kennedy said, “I don’t understand this not dignity-bestowing. I thought that was the whole purpose of marriage. It bestows dignity upon both man and woman in a traditional marriage.”
          “It’s dignity bestowing,” Kennedy continued, “and these parties say they want to have that same ennoblement.” Bursch tried to recover, to no avail. Ending the colloquy, Kennedy confessed he was still “puzzled.
          With Kennedy’s first comment in mind, I hedged my bets in a radio hit that afternoon. Recalling Justice Brennan’s famous “counting to five” rule, I said that lawyers on both sides had some reason to think they had a shot at the critical fifth vote: Kennedy’s.
          Others in the press corps were similarly tentative, but Adam Liptak in The New York Times wrote in his lead that the “tone and substance” of Kennedy’s questions gave marriage supporters “reasons for optimism.” BuzzFeed’s Chris Geidner flatly predicted a pro-marriage ruling.
          Tellingly, Ed Whelan, a former Scalia law clerk and now the Bench Memo blogger for the National Review’s online site, openly despaired. “Having watched Justice Kennedy for 25+ years,” Whelan tweeted, “I have no real hope he’ll let state marriage laws survive.”
          Kennedy is capable of Hamlet-like indecision. He worried aloud to a reporter about “crossing the Rubicon” on the day in 1992 when he joined a five-justice majority to reaffirm the abortion rights decision Roe v. Wade. In the end, however, Kennedy must be true to his own self and his record on the bench. He may have wrestled with the decision, but when the justices met in conference on Wednesday [April 29], the best guess is that he provided the fifth vote for marriage equality and, as the senior justice in the majority, assigned the opinion to himself.