by Michael Dorf
In my latest Verdict column, I argue that the SCOTUS cert grant in the Sixth Circuit same-sex marriage (SSM) cases makes it all but a foregone conclusion that the Court will recognize a right to SSM by the end of the current term. I say that the important question now is how the Court goes about finding a right to SSM: Will the Justices apply nominally rational basis scrutiny while finding the "accidental procreation" argument irrational? Will they say that laws denying SSM are rooted in constitutionally impermissible "animus"? Or will they say--as I propose they should--that laws discriminating on the basis of sexual orientation must be subject to heightened scrutiny?
Readers interested in why I would prefer an express holding that sexual orientation is a suspect or semi-suspect classification are invited to check out the column. Here I want to address what may strike all but the most dedicated Supreme Court junkies as a non sequitur: Did the cert grant in the SSM cases increase the odds that the Obama Administration will lose the challenge to the Affordable Care Act subsidies on the federal exchanges in King v. Burwell?
Obviously, there is no doctrinal connection between the issues. So why might one think that the odds of a government defeat in King just went up a bit? The answer lies in the realm of human psychology.
Recall that one leading theory that aimed to explain the vote of CJ Roberts to uphold the ACA's so-called individual mandate under the taxing power in NFIB v. Sebelius went like this: The Chief Justice cares a great deal about the Court's reputation as an institution; he believes that public perceptions of the Court as a partisan body undermine that reputation; he foresaw that a 5-Republican-to-4-Democrat split on the Court to invalidate the signature legislative achievement of a first-term Democratic President during an election year would be widely perceived as partisan; and so he was inclined to want to find some way to uphold the ACA.
There is a crass and a less-crass version of the foregoing theory. The crass version had the Chief Justice making the calculations just described consciously. In the less crass version, the calculations were subconscious.
As I've said before, I don't know of any evidence that the institutional integrity considerations influenced the Chief Justice at all in NFIB v. Sebelius. I certainly disagree with the conservative critics who argue that his reasoning with respect to the tax power was so weak that he must have been deciding based on other factors; in my view, that was a perfectly plausible purely legal basis for the ruling.
Nonetheless, I acknowledge the possibility that the Chief Justice (and one or more other Justices) might occasionally give conscious or subsconscious consideration to how the Court's rulings will be perceived. If so, then having a same-sex marriage case on the docket--in which the Court will almost certainly produce a "liberal" ruling--gives the Chief (and other conservative Justices) the latitude to rule against the Obama Administration in King without substantially contributing to the perception of the Court as a partisan body. The average relatively-low-information observer will see a liberal and a conservative decision on big issues and think that the Court is not deciding based on politics but based on law.
So far I have merely articulated a worry that my informal methods lead me to think is fairly widespread among SCOTUS cognoscenti. I have not offered any concrete evidence for it, and I do not know of any efforts to test for such evidence. I'm confident that I lack the statistical skills to tease out from the long-term pattern of SCOTUS decisions whether a high-profile liberal decision in any Term increases the odds that an unrelated case will be decided in a conservative way (or vice-versa). But let me suggest that this is a sufficiently interesting hypothesis that the kinds of scholars who do have the right skill set might want to test it.