What did RBG mean by “The court handled both [SSM] cases just the way they should have.”

August 26th, 2013

In another (not so) rare interview, Justice Ginsburg had this to say about the resolution of the two same-sex marriages cases involving DOMA and Prop 8:

“The court handled both of those cases just the way they should have,” she said.

What does this mean? Well, let me be precise. I get what it means with respect to Windsor. The Court did the right thing.

But what does this mean with respect to Perry? The Perry decision was resolved based on a jurisdictional analysis that only a FedCourts wonk could appreciate. Ginsburg voted with the majority, finding that petitioners lacked standing to challenge to appeal.

I tend to doubt that RBG’s comments about Perry behind handled “the way [it] should have” been handled has anything to do with the nuances of Article III. I take it that she was making a more policy-oriented vision on it. After all, she voted to deny standing to the petitioners, effectively letting the order striking down Prop 8 stand. Gay-marriage is now the law of the land in California. As did Justices Kagan and Breyer, along with Roberts and Nino. But Kennedy, Thomas, Alito, and Sotomayor did not.

We can parse tea leaves for years to figure out that voting alignment. Maybe it had something to do with doctrinal differences on jurisdictional issues. Or maybe, it had to do with differences about what the Court “should do,” rather than what the law commanded.

I tend to agree with Paul’s comments on RBG’s recent interviews. I hope she doesn’t go the JPS route, if and when she does retire.