Well, NFIB certainly took us for a loop. Many (but not all) of us were surprised by the way the final votes broke down. Let’s not be surprised. Let’s concoct all of the most bizarre, yet feasible outcomes for the SSM cases.
I’ll start things off.
My “off-the-wall” prediction for the DOMA case.
- Ginsburg, Breyer, Sotomayor, and Kagan hold that there is a right to same-sex marriage, and DOMA is unconstitutional.
- Roberts, Scalia, and Alito hold that there is no such right, and DOMA is constitutional.
- Justice Kennedy avoids deciding whether there is a right to same-sex marriage, but finds DOMA is unconstitutional on federalism grounds and violates states rights.
- Justice Thomas dissents, and finds that Bolling v. Sharpe is wrong as a matter of original meaning, and the 5th Amendment does not actually have an Equal Protection component, but joins Justice Kennedy’s opinion finding that DOMA violates states rights.
- Chief Justice Roberts concurs specially to scold the Solicitor General for changing its position on DOMA, and appealing a case that it agreed with.
Feel free to add your outlandish holding in the comments. Random bit, but Justice O’Connors birthday is March 26, which may be the date of oral arguments. That would be fun.
For real predictions, check the FantasySCOTUS.net prediction tracker.