The Supreme Court's decision to spend two days this week hearing oral arguments on California's gay marriage ban and federal benefits for same-sex couples was said to have come down to one man: Justice Anthony Kennedy. So, now that the lesbian cousin of Chief Justice John Roberts will be in attendance at the Court tomorrow, are we beyond a 5-4 split on the future of gay marriage in America?
Enter Jean Podrasky, Roberts's 48-year-old first cousin, who wants to marry her partner in San Francisco. Her fate, along with that of thousands of others, could be decided in Tuesday's hearing on Proposition 8 — a decision on that ban and Wednesday's hearing on the Defense of Marriage Act is expected toward the end of the Court's session in June. According to The Los Angeles Times, Podrasky will be watching the arguments in Hollingsworth v. Perry in person, and Roberts knows she'll be there; her father will replace her in the crowded courtroom on Wednesday as the Court determines in United States v. Windsor whether DOMA's determination on federal benefits breaks the equal protection clause of the Constitution. And she believes in her very important cousin: "He is a smart man," Podrasky told the Times's Maura Dolan, then added what may be the most personal preview of the Chief Justice's emotional opinion on cases that may come down to many more legal specifics than that: "He is a good man. I believe he sees where the tide is going. I do trust him. I absolutely trust that he will go in a good direction."
Hey, nobody really saw that Obamacare vote coming from Roberts, and that "good direction" about "where the tide is going" would seem to align not just with one lesbian in San Francisco but the majority of the country: Last week an ABC News/Washington Post poll showed that overall support for gay marriage is up to 58 percent, an all-time high. And while one personal connection made Senator Rob Portman shift his stance (more from his son Will today right here), it may be a stretch to think a stance on minority issues in Congress is the same as one of the most landmark of landmark Supreme Court decisions. In 1996 Roberts actually donated his legal help to gay rights activists in the Romer vs. Evans case, but that doesn't necessarily he's a gay marriage advocate: "There is no other record of Roberts being involved in gay rights cases that would suggest his position on such issues. He has stressed, however, that a client's views are not necessarily shared by the lawyer who argues on his or her behalf," The Los Angeles Times's Richard A. Serrano wrote in 2005. And Richard Socarides, the principal adviser to President Clinton on gay and lesbian issues, agreed on Roberts's poker face: "None of the gay-rights-related cases that have come before him as a judge give any significant clues as to how he might rule on the weighty constitutional issues he will face," wrote Richard Socarides for The New Yorker last July.
What's more, as New York Times Supreme Court reporter Adam Liptak wrote over the weekend, the Court is operating under the shadow of Roe v. Wade, another culture-war question that became a Constitutional one — and that even Ruth Bader Ginsburg thought "moved too far, too fast." Other legal experts argue that a "political realignment" may better set up the Court to rule broadly. But everyone will be listening for tea leaves in Tuesday's hearing — the ruling may be two-and-a-half-months away, but questions from justices always provide a preview, and same-day Court audio will be available — and perhaps no one will be listening more carefully and closely than the family of Justice Roberts.