Sahil Kapur has an article about the oral arguments in the DOMA case, arguing that Chief Justice John Roberts was cleverly trying to put Justice Kennedy, the key vote in the case, into a box. Kennedy clearly thinks DOMA is unconstitutional on federalism grounds, but Solicitor General Donald Verrilli explicitly disavowed that conclusion under questioning by Roberts:
Although Kennedy has written the Supreme Court’s two key majority decisions in favor of gay rights, he made clear last week that he’s uncomfortable with overturning gay marriage bans in all states — and more specifically that he’s uncomfortable with deciding either DOMA or the California gay marriage case before the court on equal protection grounds. “You’re really asking … for us to go into uncharted waters,” he told the lawyer advocating a constitutional right for gays and lesbians to marry. But Kennedy also wasn’t sympathetic to treating married gay couples differently under federal law, charting out a compromise that lets states define marriage and requires the federal government to accept their definition.
Perhaps conscious of Kennedy’s predicament, Roberts tried to build consensus against striking down DOMA on federalism grounds, knowing that neither side arguing the case was seeking that middle path. He repeatedly — and successfully — asked the government’s anti-DOMA lawyer to affirm that it does not believe the 1996 law violates states rights.
“So just to be clear, you don’t think there is a federalism problem with what Congress has done in DOMA?” Roberts asked U.S. Solicitor General Donald Verrilli on Wednesday.
“We — no, we don’t, Mr. Chief Justice,” Verrilli responded…
The Roberts-Verrilli exchange didn’t sit well with Kennedy, who jumped in and argued that DOMA supersedes the authority of states to regulate marriage. “There is a federalism interest at stake here, and I thought you told the Chief Justice there was not,” Kennedy said. Verrilli responded that when it comes to DOMA, “the problem is an equal protection problem.”
What Kapur did not address was the question that jumped out at me: Did the Obama administration — reports are that President Obama was personally involved in the writing of the government’s brief in the case — overreach with this argument? Would they have been better off taking a federalist position, or taking both a federalist and an equal protection position, in the case? I think that may well have been a strategic mistake.
This is not an unusual situation. The lawyers on all sides of such a case make strategic choices on what kinds of arguments to make and they tailor those arguments to specific justices that they think will decide the case. And they may well have believed that Kennedy, who authored the two most important gay rights rulings in the nation’s history, could be persuaded to sign on to a broad ruling on equal protection grounds. But shouldn’t they at least have offered a less far-reaching alternative in their briefs and in oral argument?
The justices themselves also think strategically in such situations and they do negotiate outcomes. If the four liberal justices can’t get Kennedy on board with a broad equal protection ruling but can get him to strike down the law on federalism grounds, do they opt for the more moderate path in order to get the five votes necessary to overturn the law? Or do they try to do both, sign on to a narrow federalism ruling written by Kennedy and file their own concurring opinion saying that they would go much further and declare a constitutional right to same-sex marriage? Would the second option make Kennedy less willing to go along with them? We have no way of knowing, of course, and we won’t find out what’s really going on behind the scenes for probably a decade or more (five years after a justice passes away, we get access to their papers, often including internal memos that show the kinds of deliberation and maneuvering was going on behind the scenes). The next three month are going to be full of intrigue and speculation.