The Chutzpah of Justice Kennedy Lecturing Us About Democracy on June 26
June 26 is a very significant day in Supreme Court history. On, 6/26/2003, Justice Kennedy wrote the majority opinion in Lawrence v. Texas. On 6/26/2013, Justice Kennedy wrote the majority opinion in U.S. v. Windsor. And on 6/26/2015: Justice Kennedy wrote the majority opinion in Obergefell v. Hodges.
The last of these opinions was the most significant. June 26, 2015 fell on a Friday. At the time, it was fairly unusual for the Supreme Court to hand down opinions on a Friday. But wouldn’t you know it, Pride weekend would begin the next day. At the time, David Lat wondered if Joshua Matz, one of Kennedy’s clerks “pointed out to his boss . . . that handing down Obergefell on June 26 would basically turn that day into Justice Anthony M. Kennedy Day for the LGBT community.” And so it came to pass.
It is difficult to think of any decision that had a more harmful effect on democracy than Obergefell. What still galls me about the decision is that public opinion was trending, rapidly, in favor of a right to same-sex marriage. Within only a few years, states that approved of same-sex marriage would have reached a critical mass. In 2013, the 538 Blog offered this forecast for support for same-sex marriage. In the brief period between Windsor and Obergefell, I woul
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