I’m hibernating doing edits on a paper that are under deadline, but I did want to offer one thought about the oral argument in the same-sex marriage cases. Some who oppose televising arguments claim that this would turn them into a performance rather than a genuine conversation between the Justices and counsel.
It seems to me, though, that in the high-profile cases where same-day audio is being released, this is already the case. Anybody who believes that Justice Kennedy is uncertain about what he will do in these cases is fooling themselves. But he must have felt as though he should at least pretend to have doubts to appear neutral. If he and his colleagues allowed thousands of same-sex marriages to occur by allowing circuit court decisions, say in the Seventh Circuit, to become final while harboring doubts about whether that was constitutionally required, then they are guilty of an abuse of office. There is no way that the majority harbors such doubts, though, so let’s move on to what the opinion will say.