HEDGING BETS

Chief Justice Roberts Knows He’s On The Wrong Side Of History

Chief Justice John Roberts
Chief Justice John Roberts

Today’s marriage ruling had four separate dissenting opinions–a level of disagreement last seen in 2000 in the Bush v. Gore ruling. Everyone knew what to expect from Antonin Scalia, and he lived up (or down) to expectations. The more interesting dissent is from Chief Justice Roberts because it shows that he knows that he’s on the wrong side of history.

Roberts goes out of his way in his opinion to make it clear that he’s not opposed to marriage equality per se (although he spends so much time justifying the traditional definition of marriage that you have to wonder). His writing is studded with disclaimers recognizing the the impact of the majority decision. “Many people will rejoice at this decision, and I begrudge none their celebration,” Roberts wrote.

But.

Roberts’ main objection is the legal reasoning behind the majority opinion. His preference was to let the issue play out through the ballot box instead of letting what he dismissively calls “five lawyers” to determine whether marriage is a right.

“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” Roberts said. “Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

Fortunately, five other lawyers disagreed.