Dahlia Lithwick asks the question in her latest piece for Slate. She says everyone on both sides thinks he will go against their own views, while in reality, he may not know himself:
[Religious activist David] Barton’s trepidation over Kennedy has become contagious on the right. Last week John Eastman, a conservative law professor who supports Prop 8, told the Los Angeles Times that Walker’s analysis would probably persuade Kennedy when the case came before the high court. James Taranto, writing last week in the Wall Street Journal, similarly predicted that “[w]hen the Supreme Court takes up Perry v. Schwarzenegger—perhaps under the name Brown v. Perry or Whitman v. Perry—the justices will rule 5-4, in a decision written by Justice Kennedy, that there is a constitutional right to same-sex marriage.” And perhaps the gay-marriage opponent most certain of Kennedy’s vote is his colleague, Antonin Scalia. Dissenting from Kennedy’s opinion in Lawrence v. Texas, the 2003 case striking down the state sodomy law, Scalia wrote that Kennedy’s opinion “dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. …”
And yet the left is almost equally certain that Kennedy will vote not to create a constitutional right to gay marriage. Scott Lemieux wrote at the American Prospect that Kennedy’s strong gay rights votes in both Lawrence v. Texas and Romer v. Evans did not predict a yes vote in Perry because of both “the breadth of the case and the level of public opposition.” (Jan Crawford similarly told CBS News that even though Kennedy is a “human jump ball” in this case, “this is something that Anthony Kennedy doesn’t do. He’s a very cautious justice. He doesn’t like to get ahead.”) Andrew Sullivan has collected some representative samplings of others who likewise don’t believe for an instant that Kennedy is seriously in play in this case.
In other words, Kennedy himself has become the Rorschach test, with both sides importing their worst fears onto their assessment of his future vote. . . . [A]nyone seeking deeper hints or tips on what Kennedy might do in Perry is probably just going to have to wait and see. Kennedy may not even know yet himself.
As regular readers know, I have come out with the rather iconoclastic view that Kennedy will vote to reverse the obnoxious Walker decision. Although a shocking prediction is more impressive if it comes true without explanation of the logic behind it, I thought I might pull back the curtain and explain some of my thinking.
First and foremost in my mind is the way that the previous appeal on this very case went down. The opinion staying the televising of the proceedings was 5-4. It was a per curiam decision, but it was clear who was in the majority, because the dissenters named themselves: and they were the four liberals. Not Kennedy.
Yes, in theory, that was a procedural issue. But it indicated something about the way the Justices viewed the underlying issues — and the opinion itself, with its description of the thuggery of anti-8 forces, was very telling. The fact that it broke 5-4 along partisan lines, with Kennedy in the majority, is the best ray of hope that Proposition 8 proponents have. In fact, the day that opinion came down is the day I felt I knew how Anthony Kennedy would eventually vote on the underlying issue.
Lithwick claims that Scalia predicted that Kennedy would vote for gay marriage, quoting Scalia’s dissent in Lawrence v. Texas as asserting that Kennedy’s opinion
dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. …
This is classic dissent writing: the dissenter says “Your opinion is so ridiculous that it would permit x.” But Kennedy’s opinion contains numerous phrases that show he had gay marriage in mind — and wasn’t willing to go so far as to make the government sanction it:
The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.
. . . .
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
Sandra Day O’Connor, who concurred in the judgment, made her feelings along these lines even more explicit:
Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.
Her opinion was not joined by Justice Kennedy or anyone else, so its power to reveal Kennedy’s views is limited and arguably nonexistent. But O’Connor’s opinion makes it clear that a swing justice could easily accept Lawrence v. Texas‘s result and still oppose constitutionalizing gay marriage.
Again: I could be wrong about all of this. I have made it clear on many occasions that I don’t respect Justice Kennedy, and do not believe that he holds any legal principle to be more important than his own self-aggrandizement. He could once again fall under the spell of the siren song of the New York Times editorial page. It wouldn’t be the first time.
But these are some of the reasons that I think my prediction is not actually as shocking as it might seem in the abstract.