On the election law listserv, Fred shared his thoughts on the unusual composition of the majority in the Prop 8 case. Reprinted by Rick’s request, with Fred’s permission:
With apologies if this is a little late or off-topic, but after having had a chance last night to read the Prop 8 opinions and reflect upon the rather unusual alignment of the Justices, I was wondering if anyone had any thoughts or had seen any analysis/speculation as to what the alignment of the majority and dissenting Justices might have indicated with respect to the likely outcome of the case on the merits, had the Court reached that issue.
For example, Justice Scalia, who joined in the majority opinion, is not normally one who favors an expansive interpretation of federal standing, so it might not necessarily have been surprising to see him sign onto Roberts’ opinion. But Ginsburg, Kagan, and Breyer? They would generally be expected to adopt a more liberal position on access to the federal courts; their votes appear to be more supportive of the outcome that results from denying standard in this case, effectively overturning Prop 8. Conversely, one would not normally associate Justices Thomas and Alito with an expansive view of standing, and one is left to wonder whether their votes joining Kennedy’s dissent were likewise more outcome-oriented, objecting to the fact that the result of the majority’s opinion would be to leave the District Court’s opinion in place invalidating Prop 8.
And what of Justice Kennedy himself? I found it interesting, although not really surprising, that after saying that he would have found that Respondents had standing to appeal in order to defend Prop 8, he said nothing about how he would have then ruled on the merits. Nor did anyone else give any hint as to how they would have ruled on the merits. Did the other Justices know how Justice Kennedy would have voted on the merits? Is that why Ginsburg, Kagan, and Breyer were willing to find no standing and take a “victory” any way they could? And is that why Justice Scalia was willing to join with Roberts, even though it resulted in upholding Prop 8, because he feared/knew that an even “worse” outcome would have resulted if he had joined with his usual voting colleagues Thomas and Alito instead?
And what did Justice Kennedy say in the first conference vote immediately after oral argument in the case? Presumably he would not have simply said that he was going to dissent from dismissal on standing grounds, because (a) it’s not likely that there would have been five votes voiced by that time in favor of dismissal on standing grounds (since, if I recollect correctly, the Chief states his opinion last) (b) in the absence of such a majority, saying that I would not dismiss is not a complete response to how one would resolve the appeal. Did Justice Kennedy ever indicate to his colleagues how he would have voted on the merits?
I think it’s all fascinating, and I have more questions the more I think about it. Alas, I suppose we may have to wait until one of the Justices dies and allows their notes to become public – or until a law clerk leaks it – to know what really happened. But it sure makes for great game theory analysis in the meantime.