Orin Kerr: Walker and Reinhardt's Opinions Won't Matter Much to SCOTUS


Orin Kerr, Professor of Law at George Washington University writes at the legal expert blog Volokh Conspiracy:

...I have no idea what the Supreme Court might do in the Perry case. But my own sense is that Judges Walker and Reinhardt are not quite as clever as some people seem to think. Or, at the very least, the reasoning of their opinions don’t really matter very much. First, I think it’s unlikely that the particular reasoning of either opinion will have a substantial influence on the Justices. The issues in Perry are extremely important, and they’re the kind of issues that force the Justices to fall back on first principles. The details of how the lower courts reached the results they reached matter a lot less in that kind of case than in an ordinary case. Consider how Judge Reinhardt dealt with Judge Walker’s extensive factual findings: He basically ignored them.

Second, to the extent the reasoning of the lower court decisions matter — which, as I said, I tend to doubt — the fact that both opinions are widely understood as advocacy briefs to Justice Kennedy from judges who are same-sex marriage supporters probably hurts the same-sex marriage cause more than helps it. The Justices aren’t dumb: They get it. And when they get the sense that the lower courts were crafting their opinions to try to maneuver a single Justice into a desired result in such a high profile case, that kind of heavy handedness runs a risk of backfiring. It creates a sort of patina of unreliability. I think a more clever strategy would have been to be more subtle: Create more of a sense of the opinions as routine legal opinions and less as advocacy briefs. And if you’re Reinhardt, make the opinion “per curiam” so it doesn’t come to the Court with your name on it.