I Predict … (With an update)

Jim Burroway

June 25th, 2015

Chief Justice John Roberts: Yes.
Antonin Scalia: No.
Anthony Kennedy: Yes.
Clarence Thomas: No.
Ruth Bader Ginsberg: Yes.
Stephen Breyer: Yes.
Samuel Alito: No.
Sonia Sotomayor: Yes.
Elena Kagan: Yes.

Carson as CarnacThat’s one of my two predictions for how the Supreme Court will rule on Obergefell v. Hodges, the lead lawsuit for a slew of marriage equality cases before the Court. My second prediction is that the ruling will come down tomorrow. (Note: I’m not so sure about tomorrow as I was earlier this morning. See below.) Here’s my thinking:

6-3: Chief Justice Roberts joins the five-person majority. If the Chief Justice is in the majority, then he has the prerogative to write the ruling or assign it to someone else in the majority. If the Chief Justice is not in the majority, then the task falls to the most senior justice in the majority to either write it himself/herself or assign another justice in the majority to write the opinion.

In my mind, this is critical. Roberts didn’t join the majority in Windsor v. US, so Kennedy ended up writing the opinion declaring that the portion of the Defense of Marriage Act which barred the Federal government from recognizing legal same-sex marriages was unconstitutional. It didn’t address the constitutionality of marriage bans, but look what happened anyway: courts all over the country began using Windsor to strike down those marriage bans right and left. Some of those courts took Windsor to mean that heightened scrutiny applies, or at least was allowed. There is the similar potential, depending on how Obergefell is written, for its effects to reach far beyond the question of marriage itself. It may enshrine, eliminate, or clarify the applicability of heightened scrutiny for LGBT people in other cases, as just one example. Or it may have other follow-on effects, depending on how it’s written. If Roberts has an interest in limiting Obergefell’s effects on other cases, then he may well want to keep the majority opinion out of Kennedy’s hands. Otherwise, the Court goes 5-4 and Kennedy gets to write the opinion — or pass it along to one of the even more liberal Justices.

Now of course Roberts may have other reasons for joining the majority. In today’s Obamacare ruling, he apparently did so in order to write an expansive ruling rather than a narrower one. A narrower ruling, for example, might have left Obamacare intact but the interpretation of the contested phrase “established by the states” up to the IRS. That would allow a future Republican President to order the IRS to interpret the clause differently. But Roberts took that possibility out of the hands of future Presidents by ruling that the intent of Congress when it passed Obamacare was for the subsidies to apply to all states. It’s possible that Roberts may want to take the opportunity to ensure Obergefell is similarly expansive, although I haven’t seen anything to suggest that he would be inclined to do this. But even if he doesn’t, if he sees this marriage equality case as one of the defining rulings of the Roberts Court — as were the two Obamacare cases that he wrote the opinions for — then he may well want to take this opportunity to be a part of that legacy.

So that’s how I get to 6-3.

And I get to 6-3 for both questions: whether gay marriage bans are unconstitutional (yes, 6-3) and whether states must recognize same-sex marriages from other states (yes, the same 6-3, although I guess it might be mooted by the first question). I don’t see a split decision here. If the Court rules against the first question while upholding the second, then it really doesn’t solve anything. In fact, chaos will reign because of the decision. By my count, marriage decisions in about 23 states (I could be off here) and Guam would be rolled back, leaving the status of thousands of marriage licenses in limbo and scores more lawsuits in the making. And that means that the Supreme Court would almost certainly have to address this issue all over again. I just don’t see the Court going against the overwhelming majority of Federal judges while inviting more headaches for itself. Besides, to arrive at this kind of a split decision, they’d more or less have to say that at least a portion of Windsor was “wrongly decided.” I just don’t see them borrowing a phrase like that from Lawrence, which struck down sodomy laws nationwide in 2003, to do something like this.

Friday: Why Friday? Well, Obamacare was today, and since the Court tries to keep each decision day limited to one major decision (and whatever relatively minor decisions which happen to be ready), then there’s no way the marriage case was going to happen today. I actually think that if they were going to strike Obamacare down, they probably would have waited until Monday because of the tremendous fallout. But since it was being upheld, it was a pretty safe move for the court to put it up today. But that necessarily meant that Obergefell would get pushed off.

So why tomorrow and not Monday? Well, the Court doesn’t operate in a hermetically-sealed chamber, unaware of what’s going on around it. June 26 has been a very auspicious day for pro-gay rulings: Lawrence on June 26, 2003, and Windsor on June 26, 2013. Also, Pride is this weekend for a huge number of cities around the world. Considering that the court could have just as easily selected Tuesday, June 30 as an extra decision day, June 26 just seems to be the most likely. That way, everybody gets to talk about it over the weekend and the Court can cleanly dispose of the three or four remaining cases on Monday (depending on how many other cases they release tomorrow) and go home for the summer.

Update: There’s a strong argument against a Friday ruling: the Charleston funerals take place tomorrow. I hadn’t thought of that when I wrote this. I suspect that Friday was chosen as a decision day with Obergefell in mind, but now I’m not so sure it’ll happen.

Grounds?. Equal protection? Due Process? Both? Something else? On that question, I’m on much shakier ground. I don’t really have a prediction here. But you have the rest: 6-3, tomorrow (tentatively). What’s yours?

Mary in Austin

June 25th, 2015

From your keyboard to the Flying Spaghetti Monster’s noodly appendages! May you be absolutely correct in this!


June 25th, 2015

I agree with the 6-3, but I think Kennedy writes the ruling for due process, and Roberts concurs with the ruling, but on gender bias grounds. BTW, IANAL. :)

Jim Burroway

June 25th, 2015

Also, I ain’t no anykinda lawyer either. (I had to look up IANAL.)


June 25th, 2015

Your reasoning for 6-3 makes sense, but I have to disagree with it being tomorrow. I’m not saying it won’t be, but I don’t think the court really cares about the significance of the date. They could just as easily release 4 opinions tomorrow, and save SSM for Monday. I would even go as far as saying that being a Friday makes it less likely since that would put a lot of burden on some states to change things over a weekend when they would normally be closed for business.

Jim Burroway

June 25th, 2015

There’s another reason that argues against a Friday ruling: the Charleston funerals. I hadn’t thought of that.


June 25th, 2015

I thought it would be 6/26 for sure. But I agree that the Charleston funerals should be respected. I can wait until Monday.


June 25th, 2015

Conversion therapy situation. I apologize for going way off-topic, but this just showed up and I wanted to cross post it here in the hope that someone who otherwise might not have seen it can help this kid –



June 25th, 2015

Going off their opinions in Windsor, I predict 5-4. I won’t be shocked if Roberts or Alito concur with the majority on narrow grounds, but I will be if any of the liberals, Scalia, or Thomas flout expectations.


June 25th, 2015

Speaking of legal rulings. The SPLC won their fraud case against JONAH (Jewish conversation therapy group) in NJ.


Priya Lynn

June 25th, 2015

I don’t think the Charleston funerals will have any bearing on whether or not the decision is released Friday.

Timothy Kincaid

June 25th, 2015

I think that Alito and possibly Thomas will agree with Question Two (interstate recognition). So that will be (I think) 7-2 or even 8-1.

But while it really is a no-brainer, if one reads the clear words of the constitution, Scalia answers to no documents but the writings of the Catholic Church.

Catherine Lugg

June 25th, 2015

I’m betting tomorrow, since, to be blunt, the Chief isn’t exactly sensitive to the concerns of African Americans.

That said, if it’s a 6-3 decision, Roberts will write–and it will be under the contract clause of the constitution–that contract constructed in one state must be recognized in another.

Stay tuned…..

Eric Payne

June 25th, 2015

I still think the Court, 5-4, will rule individual states do not have to offer same-sex couples marriage licenses (Question 1), but, in another 5-4, states must recognize legitimate marriage licenses obtained by same-sex couples in states that do solemnize same-sex marriages (Question 2).

That will make for a de facto right to be treated as a married couple anywhere in the United States, while not actually establishing a pro forms Constitutional right.

Kennedy will be the swing vote in both decisions.


June 25th, 2015


“Scalia answers to no documents but the writings of the Catholic Church.”

EXCEPT for Catholic teachings against the death penalty, taking care of the poor, stewardship of the Earth…

Then, he conveniently prefers to keep his religion out of his politics.

Sir Andrew

June 25th, 2015

I agree with most of your predicted votes, but I think we may be surprised by Thomas. He has been challenging Scalia with one out of every three rulings in the last two months, rather than following blindly whatever Antonin ordered him to do. I think he’s tired of both being pushed around by the Italian bully, and by reading about how he’s being pushed around by the Italian bully; being a lickspittle is not fun…or so I’ve been told. It’s also possible that he will be able to relate our fight for access to our rights with what the African-American community has been through. I think the vote will be 7-2.

It’s clear that Roberts wants to get as far away from a 5-4 ruling as possible considering the importance of this case, as well as the emotions surrounding it. He may find a way to get the last two votes to make it unanimous. He may even have been trading votes all session long just to get to this point. Here’s hoping.

Priya Lynn

June 25th, 2015

” He may find a way to get the last two votes to make it unanimous.”.

If you’re going to dream may as well dream big.


June 26th, 2015

Not exactly a prediction, but a while back I ranked (based on very little) the possible scores, so to speak, from what I thought most to least likely.

Most: 6-3
either 7-2 or 5-4
(bigger gap)
8-1 or better
3-6 or worse


June 26th, 2015

I don’t understand why everyone thinks these people think about Pride one way or the other. Obviously, I could be wrong, but I’d guess that they release decisions on the basis of their schedule, not ours.

And as for Roberts joining the majority and writing the opinion to narrow it, if the opinion he wrote were more narrow than the other justices in the majority wanted they would join a broader concurring opinion and that opinion would become the majority. There’s no reason for Roberts to try to “trick” them.

And as for the funerals, the Court is releasing decisions on Friday no matter what. These are separate branches of government. The president giving a eulogy is unlikely to have altered their plans in the slightest.


June 26th, 2015

I’ll try for another, shakier prediction: Roberts and Alito will be on the same side, whichever it may be. I think all the justices’ legal decisions will be strongly swayed by their feelings about same-sex marriages, and during oral arguments in this and the 2013 cases, both Roberts and Alito seemed to be opposed, but not disturbed by and contemptuous of the very idea like their fellow conservative Scalia.

@Sir Andrew: It’s true, the decision’s importance in the court of public opinion may be a factor. It’s hard to think of another recent court decision that’s guaranteed the same level of exposure across the globe and in history books.

Eric Payne

June 26th, 2015

When I was wrong, I say I was wrong.

Thank you, Justice Kennedy.

Damn… I feel like crying…


June 26th, 2015

Gay marriage equality wins the day, 5-4!!!!!

Who saw that coming? This guy.

Congratulations, America! And congratulations to everyone here at BoxTurtleBulletin. This is our day.

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.


Latest Posts

The Things You Learn from the Internet

"The Intel On This Wasn't 100 Percent"

From Fake News To Real Bullets: This Is The New Normal

NC Gov McCrory Throws In The Towel

Colorado Store Manager Verbally Attacks "Faggot That Voted For Hillary" In Front of 4-Year-Old Son

Associated Press Updates "Alt-Right" Usage Guide

A Challenge for Blue Bubble Democrats

Baptist Churches in Dallas, Austin Expelled Over LGBT-Affirming Stance

Featured Reports

What Are Little Boys Made Of?

In this original BTB Investigation, we unveil the tragic story of Kirk Murphy, a four-year-old boy who was treated for “cross-gender disturbance” in 1970 by a young grad student by the name of George Rekers. This story is a stark reminder that there are severe and damaging consequences when therapists try to ensure that boys will be boys.

Slouching Towards Kampala: Uganda’s Deadly Embrace of Hate

When we first reported on three American anti-gay activists traveling to Kampala for a three-day conference, we had no idea that it would be the first report of a long string of events leading to a proposal to institute the death penalty for LGBT people. But that is exactly what happened. In this report, we review our collection of more than 500 posts to tell the story of one nation’s embrace of hatred toward gay people. This report will be updated continuously as events continue to unfold. Check here for the latest updates.

Paul Cameron’s World

In 2005, the Southern Poverty Law Center wrote that “[Paul] Cameron’s ‘science’ echoes Nazi Germany.” What the SPLC didn”t know was Cameron doesn’t just “echo” Nazi Germany. He quoted extensively from one of the Final Solution’s architects. This puts his fascination with quarantines, mandatory tattoos, and extermination being a “plausible idea” in a whole new and deeply disturbing light.

From the Inside: Focus on the Family’s “Love Won Out”

On February 10, I attended an all-day “Love Won Out” ex-gay conference in Phoenix, put on by Focus on the Family and Exodus International. In this series of reports, I talk about what I learned there: the people who go to these conferences, the things that they hear, and what this all means for them, their families and for the rest of us.

Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"

The Heterosexual Agenda: Exposing The Myths

At last, the truth can now be told.

Using the same research methods employed by most anti-gay political pressure groups, we examine the statistics and the case studies that dispel many of the myths about heterosexuality. Download your copy today!

And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.

Testing The Premise: Are Gays A Threat To Our Children?

Anti-gay activists often charge that gay men and women pose a threat to children. In this report, we explore the supposed connection between homosexuality and child sexual abuse, the conclusions reached by the most knowledgeable professionals in the field, and how anti-gay activists continue to ignore their findings. This has tremendous consequences, not just for gay men and women, but more importantly for the safety of all our children.

Straight From The Source: What the “Dutch Study” Really Says About Gay Couples

Anti-gay activists often cite the “Dutch Study” to claim that gay unions last only about 1½ years and that the these men have an average of eight additional partners per year outside of their steady relationship. In this report, we will take you step by step into the study to see whether the claims are true.

The FRC’s Briefs Are Showing

Tony Perkins’ Family Research Council submitted an Amicus Brief to the Maryland Court of Appeals as that court prepared to consider the issue of gay marriage. We examine just one small section of that brief to reveal the junk science and fraudulent claims of the Family “Research” Council.

Daniel Fetty Doesn’t Count

Daniel FettyThe FBI’s annual Hate Crime Statistics aren’t as complete as they ought to be, and their report for 2004 was no exception. In fact, their most recent report has quite a few glaring holes. Holes big enough for Daniel Fetty to fall through.