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Behind closed doors in the marriage equality cases

Scotusblog’s Lyle Denniston has this enlightening look at what’s likely going on inside the U.S. Supreme Court as the justices consider their positions on the two marriage equality cases argued there six weeks ago.

On whether public opinion and state legislative action on the issue might be part of the conversations between and among the justices, Denniston says:

It is not difficult to imagine that one of the lines of conversation or of the written exchanges is whether the court needs to take a definite position on the constitutional questions at this point, because the legislatures are taking on the issue at an apparently increasing pace, and the trend is running strongly in favor of expanding marriage rights.If the majority is moving toward embracing same-sex marriage, the political trend in that same direction is an argument for deciding the pending cases only on very narrow grounds, or for finding a way to bypass them. But if the majority is leaning against such marriages, the political trend in the opposite direction might counsel against a ruling that could signify an attempt to stifle the trend, to keep it from spreading to other states.

Such contentions might sound like political argument, but they are institutional claims. The use of judicial power is a strong instrument in a democratic society, and the court has a long tradition of trying to avoid major constitutional judgments if they are not really necessary. Although it has often been said that the court follows the election returns, a “bandwagon effect” seldom drives Supreme Court decisions on the meaning of the Constitution.

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