By now, you know that one of the reasons why there’s a mix of hope and fear over the Supreme Court hearing two cases involving same-sex marriage is the current makeup of the high court. Some gay folks and marriage-equality advocates might think a few retirements would do the trick in shifting the court to more favorable territory. Not so fast.
As Lanae Erickson Hatalsky of Third Way pointed out to me this week, “There are four justices in their 70s. But two of them are ones that are already on our side….And only one of those is solidly opposed to marriage.” She is talking about Justices Ruth Bader Ginsburg (79), Antonin Scalia (76), Anthony Kennedy (76) and Stephen Breyer (74). The two “already on our side” are Ginsburg and Breyer. Do I really need to tell you who is “solidly opposed”?
So, any retirements other than Scalia’s or Kennedy’s will have no impact on the standing of LGBT issues at the Supreme Court. Allowing President Obama to fill one of those vacancies could result in a justice who would vote yes on a constitutional right to same-sex marriage. That would theoretically swing the balance to 5 to 4 in favor. But until that time comes, the court’s balance on gay issues will rest where they have for at almost two decades — with Kennedy.