Without even attempting to choose who decided to do what and for what reasons here, let me point out that there’s a consistent effort on the part of much of the press and many other self-appointed pundits/bloggers to characterize the actions of the SCOTUS justices on the Left/Right political spectrum. While it’s arguable that there is sometimes some validity to this, the motivating factors for the justices are often definable on quite different criteria. I have several times made the argument why Goodridgewas moderate judicial self-restraint on the part of the Mass. SJC, despite its radical effects. And one would have never to have read any of the ongoing arguments here in GD about original intent, textualism, and “living Constitution” standards for interpretation, to wave the “but Scalia’s a conservative/Stevens is a liberal” flag. Now, in deciding what cases to cover, SCOTUS is quite alive to the public sense of concern and to the political ramifications. But when it actually rules, it will (usually) apply quite different standards. Technically, it would take a “living Constitutionalist” or a particularly venal, politically-motivated textualist or originalist to find DOMA constitutional, if the Supremes ever accepted a case for review that required deciding that question. Which means that it’s highly likely that a cross-section of justices is sedulously avoiding accepting such cases.
As Oakminster observes, the present SCOTUS makeup is quite deferential to the “political branches.” Unless it can be shown by law that the EPA is required to regulate the greenhouse effects of CO2 and has refused to do its legally mandated duty when it was quite capable of doing so, in terms of funding and regulatory power, the Court (or a majority, anyways) is inclined to defer to EPA’s own understanding of its powers, limits, and discretion in discretionary cases. And, whatever the political motivation for reviewing the issue may be, the decision will be founded on judicial self-restraint.
