My friend and colleague Jonathan Zasloff's post on standing in the Prop 8 case nicely captures--albeit perhaps inadvertently--what I think is the basic problem with the state of constitutional law today:
If the Prop 8 is dismissed for lack of standing, then that means that gay marriages will be legal in California. It will move the cause forward. We will see gays and lesbians get married, with the end of the world not occurring.
And most importantly, it will mean that all of this can occur without worrying about what Anthony Kennedy will feel like when he wakes up in the morning. Kennedy has been sympathetic on issues of gay rights: after all, he wrote Romer and Lawrence. But taking this case to the Supremes means asking him to hold that gay marriage is mandated across the United States. He doesn’t want to do that: that’s why he wrote Romer narrowly, without squarely facing the issue of review standard for sexual orientation discrimination. It’s too much of a risk to force him into this kind of position.[Ed: Emphasis supplied.]
The court has arrogated too much power to itself over what ought to be political issues (Jonathan doubtless will disagree with that claim both as to judicial review in general and gay rights as a legal issue in particular, but those are questions for another day) and Kennedy's position as the swing vote on a closely divided court vests entirely too much power in one person. Fundamental public policies all too often hang on the whims of one unelected old guy in a robe. And, as old guys in robes go, Kennedy isn't Gandalf or even Yoda. So it would be nice to find a way of making it less important whether Kennedy gets up in the morning on the conservative or liberal side of his bed.
