With Progressives increasingly condoning censorship of conservative views as “hate speech,” conservatives are responding with an increasingly absolutist freedom of speech.
Cass Sunstein is among the country’s foremost legal scholars, distinguished by both his prodigious output and an interdisciplinary approach that draws on the insights of behavioral psychology, economics, and social science research. In his latest book, Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes, he gives us an engaging study of jurisprudential comportment that classifies judges into the four groups of the subtitle.
Yesterday the Supreme Court refused to stay the lower court decision requiring recognition of same-sex marriages in Alabama. Commentators have already suggested that this refusal shows that it will decide in favor of the right when it hears and decides the case later this term.
In my view, the more interesting lens through which to view the order is the Supreme Court’s strategic manipulation of judicial process to give momentum to same-sex marriage. This momentum helps make its ultimate decision seem like a fait accompli and thus less likely to cause political backlash. The first step in this strategy was Justice Kennedy’s opinion in United States v. Windsor that had a strategic ambiguity as a matter of doctrine: whether its holding on the constitutionality of the Defense of Marriage Act (DOMA) was based on federalism or substantive rights was unclear. But the opinion did convey the clear implication that the decision to have a single federal rule on the issue was driven by animus against homosexuals. These statements made lower court judges fearful of seeming like bigots, if they rule against constitutional challenges to state laws.
When these courts ruled in favor of the challenges, after a time the Court began to refuse to stay their decisions or accept petitions from the states to overturn them. These lower court decisions then created more facts on the ground and yet more momentum for a Supreme Court decision in favor of same sex marriage on the merits.