With observers feeling that the Supreme Court is going to stop short of a constitutional right to gay marriage, and several liberal justices voicing their concerns about why they were hearing this case at all, the question becomes which justices pushed for the court to take the case in the first place?
While liberal judges would certainly love to see the day when gay marriage is protected in all fifty states, they know that eventually they will have the opportunity to make a stronger case for it as gay marriage becomes legal in more and more states. There was no rush on gambling now for the constant swing-vote, Justice Kennedy. The conservative judges, however, the New York Times theorizes, saw their time running out:
Justice Scalia, almost certainly joined by Justices Clarence Thomas and Samuel A. Alito Jr., apparently made a twofold calculation: that their odds of winning would not improve as same-sex marriage grows more popular and more commonplace, and that Justice Kennedy, who is likely to write the decision in the case concerning the 1996 law, would lock himself into rhetoric and logic that would compel him to vote for a constitutional right to same-sex marriage in a later case.
It is not that the conservatives felt certain they would win. It is that their chances would not improve in the years ahead.
Deliberations over which cases the Supreme Court decides to hear are secret, with no formal documentation of the process besides a justice's notes (which are usually made public a few decades down the line).
So if the New York Times is right, this week's arguments will not go down as a decisive victory for advocates of gay marriage, but rather a last gasp by a conservative court, trying to act before public opinion and the states outstrip them.