In the likelihood that Perry v. Schwarzenneger eventually makes its way to the Supreme Court, we know almost for certain that three Justices are going to vote to uphold the lower court’s decision that gay marriage bans violate the U.S. Constitution, and three Justices are going to vote to overturn it. (I don’t think the votes of Justice Roberts and Future Justice Kagan can absolutely be taken for granted.) The Constitution can obviously be interpreted by reasonable people in different ways.
It’s probably also the case, of course, that the likely swing vote on the case — Justice Anthony Kennedy — could also read the Constitution in different ways. I don’t merely mean that we can’t predict his decision: I mean that neither decision would be intellectually dishonest relative to his worldview: they’d both be within the “margin of error”, so to speak. Kennedy probably won’t think about his decision that way once makes it — he’ll believe that he carefully sliced through the argumentation and derived the “right” answer — but human beings are infinitely skilled at coming up with post-facto rationalizations for decisions that are essentially arbitrary. In reality, Kennedy is probably capable of “finding” either decision depending on where he goes looking for it.
This might seem like an incredibly obvious point. But I think sometimes when the Court faces a momentous decision, the people who are best qualified to analyze the jurisprudence (i.e. lawyers and legal scholars) probably have a bias toward overestimating the degree of precision intrinsic to their discipline, as experts in most fields undoubtedly do. Even if they are not necessarily trying to analyze the Constitution in a vacuum but instead, trying to interpret it through a particular frame (in this case, Justice Kennedy’s), they probably overestimate their ability to make skilled predictions about judicial behavior based on an essentially positivist view of the law.
This is a long-winded articulation of the theory of legal realism: the idea that contingencies external to the law (such as politics, emotion, and incentives) matter when the court reaches decisions, a theory which would certainly seemed to have gained additional currency in the wake of Bush v. Gore (as Jack Balkin explains).
Although I’m not qualified to analyze the merits of Perry v. Schwarzenneger from a legal positivist point of view, I will deign to take a crack at it from a legal realist frame. It seems to me that most of the “intangibles” bear upon Justice Kennedy in ways that favor his finding Constitutional protection for same-sex marriage. For one thing, he’ll be 75 or 76 by the time the SCOTUS hears this case, and will probably be thinking about his legacy. Given that, in 50 years’ time, American society will almost certainly regard the plaintiff’s position (the Constitution does not permit discrimination in marriage on the basis of sexual orientation) as the right one, that legacy would be better served by casting the decisive vote in favor of the plaintiffs.
The other major intangible is the presence of Ted Olson on the plaintiff’s council. Olson, generally regarded as a conservative, has teamed with David Boies, his adversary in Bush v. Gore, to advocate for same-sex marriage. And as you can see in the clip above, he makes a very persuasive case for it. Whether or not you can call Olson’s a conservative case for gay marriage, I don’t quite know. But he certainly makes it seem like anything other than a radical position. In fact, he makes it seem like the necessary and obvious one.
That’s what any good advocate should do, of course. But the fact that the advocate in question is someone with the gravitas, conservative pedigree, and historical significance of Olson might make a symbolic difference above and beyond that, and could serve to make Kennedy all the more confident that he were lining up on the right side of history.