John Roberts’s Court
He and five other Justices rejected the challenge before the Court on its merits, but some Court-watchers believe that he also voted as he did for the same reason that he cast the decisive vote in upholding the Affordable Care Act in 2012. As the influential federal appeals-court judge Richard Posner put it then, the judgment to allow the statute to stand was “based to a significant extent on the hammering the court would have taken had it struck the law down.” The Court was in the national spotlight, and its legitimacy as a national institution was at stake.
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To find a right to same-sex marriage in the Constitution, he argued, the Court’s precedents require that it be “objectively, deeply rooted in this Nation’s history and tradition.” Same-sex marriage is not rooted in those ways, so the Constitution cannot be read to compel it: “The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.”
Roberts makes a forceful case for judicial self-restraint – for unelected federal judges not reading meaning into the Constitution based on their personal preferences.
..Alito responded to each of Sotomayor’s points, but primarily made a different argument: that the Constitution’s cruel-and-unusual-punishment clause “does not require the avoidance of all risk of pain.”
.. Breyer summarized more than a generation of evidence indicating that states can swiftly impose the death penalty, as the ultimate form of vengeance on behalf of the community. Or they can attempt to apply it reliably, consistently, and fairly—which does not satisfy the urge for vengeance and is much crueler to death-row inmates, who are usually kept for long stretches in solitary confinement. But they cannot do both.
.. Scalia lampooned, “Welcome to Groundhog Day” and then derided, “A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good.”