Kennedy’s voting record: sign of hope

Statistically speaking, there’s a better chance that U.S. Supreme Court Justice Anthony Kennedy will vote with the four more liberal justices on the court in the upcoming marriage decisions than he will with the more conservative ones.

Out of 22 decisions issued thus far this session in which the nine-member court has split, the court’s four more liberal justices have stuck together on 14 (the count would be 15 but for one case in which one justice recused).

Kennedy, widely considered the unpredictable swing vote in the two marriage decisions pending, voted with those four liberal justices eight times –nine times if one counts the decision in which one of the liberals did not participate.

The four justices generally regarded as more liberal are Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Ruth Kagan. Justice Breyer recused himself from one case.

By comparison, the three most conservative members stuck together in split decisions 10 times. Kennedy has voted with them only five times.

The three more conservative members are generally seen as Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

Chief Justice John Roberts voted with the conservative trio nine times out of 10.

The tightest voting pair on the court these days is comprised of Justices Sotomayor and Kagan (also the two newest members of the court), voting similarly in 19 out of 22 cases.

The three female justices, all on the more liberal wing, have voted together 18 out of 22 times.

Thomas and Alito have voted the same in 17 out of 22 cases.

The surprise might be how many times the justices have all agreed. Out of a total of 46 decisions, they have agreed on a unanimous result 24 times.

Former Justice John Paul Stevens, 93, who retired from the high court three years ago after 35 years of service, recently offered his prediction for what the court will do on the two landmark marriage equality cases pending before it.

Stevens said he thinks the court will dismiss the Yes on 8 appeal of the Proposition 8 case out of California on procedural issues, and find the Defense of Marriage Act (DOMA) unconstitutional.

The Proposition 8 case, Hollingsworth v. Perry, is testing the constitutionality of California’s voter-approved ban on same-sex marriage. Voters approved Proposition 8 in November 2008, just six months after a California Supreme Court ruling found that the state constitution required that same-sex couples be able to obtain marriage licenses the same as male-female couples do.

The DOMA case, U.S. v. Windsor, posed the question of whether Section 3 of federal law violates the equal protection clause of the Fourteenth Amendment. New York lesbian Edith Windsor filed the lawsuit with the help of the ACLU when the federal government demanded she pay more than $360,000 in estate taxes after her same-sex spouse died. Surviving spouses in male-female marriages do not have to pay estate taxes.

A decision in each case could come any day now but is expected on or near the last day of the current session, June 24.

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