At the 9th Circuit Conference in San Diego, Justice Kennedy made some waves by comparing the aftermath of Obergefell to the aftermath of Texas v. Johnson (the flag burning case). If Justice Kennedy really sees these two cases on the same parallel, he needs a bigger reality check than I thought. But much more interesting were his remarks on “draw[ing] down” on the Court’s “capital of trust.”
Kennedy didn’t elaborate on the same-sex marriage ruling or on other decisions in the last term, but he said the justices must decide cases in a fair and neutral way.
“We have to reflect on what these issues mean, and when we have a controversial case – and a very difficult case like (same-sex marriage) – we draw down on a capital of trust, a deposit of trust,” Kennedy said. “We spend that capital of trust, and we have to rebuild that capital. We have to put new deposits, new substance into this reservoir of trust.”
So how do we read this? Is a decision invalidating marriage laws drawing on the trust deposit, requiring the court to “rebuild that capital later” with some future case. Or is the decision invalidating marriage laws what “rebuilds that capital” after it has been “draw[n]” down. If so, then what decisions are “draw[ing]” on that trust.
In any event, I’ve proven myself absolutely incompetent at reading AMK’s tea leaves, so please disregard everything I wrote.