Fascinating build on idea Justices’ talk about democratic process often just rhetoric:

It would therefore be ill-advised for casual readers of these opinions to make too much of the justices’ language celebrating or denigrating democratic process. Substantive beliefs about equality are the principal driver here. That is why Justice Antonin Scalia, for instance, could pen a celebration of democracy in Windsor (the Defense of Marriage Act case) while standing with one foot planted in the freshly-dead corpse of the Voting Rights Act (and while urging the court to invalidate all school integration and affirmative action programs). And it is why Roberts, who otherwise seems genuinely to care about democratic process (as shown, for instance, by his ruling in the Health Care Case), gives it virtually no respect in race cases, unless democracy happened to produce a conservative outcome.

This lesson is particularly important for the same-sex marriage context. Quite a few commentators have ripped some of Kennedy’s comments in Schuette about democratic process out of context and insisted that they support bans on same-sex marriage. Not so. In equality cases, general language about democracy is mostly just rhetoric. The respect it appears to embody almost invariably dissipates when the substance of the legislation under review collides with where any given justice thinks the Constitution impels us. For that reason, Windsor’s potent comments about the origins and nature of hostility to marriage equality, and about the denial of dignity such hostility effects, tell us much more about the future of marriage equality than anything in Schuette.