The NYT speculates:
. . . When the justices gathered for their private conference on Dec. 7, they had many choices.
For starters, it was virtually certain that they would agree to hear one of several challenges to the federal Defense of Marriage Act of 1996. Two federal appeals courts had struck it down, and the court almost always reviews decisions from lower courts invalidating federal laws.
The question there, moreover, was the relatively modest one of whether the federal government must provide benefits to same-sex couples married in states that allow such unions. The case did not directly concern whether there is a right to same-sex marriage in other states.
So the justices chose one case on the 1996 law, United States v. Windsor, No. 12-307.
They then confronted a second, much more ambitious case, Hollingsworth v. Perry, No. 12-144, concerning whether the Constitution guarantees a right to same-sex marriage. Most observers thought the court would hold the case while it worked through one on the 1996 law, and some thought it might deny review, letting stand an appeals court decision that had struck down Proposition 8.
Instead, the court granted review in the case. That was a surprise and a puzzle. Who had voted to hear it?
One school of thought was that the court’s four liberals were ready to try to capture Justice Kennedy’s decisive vote to establish a right to same-sex marriage around the nation.
That theory was demolished in the courtroom as one liberal justice after another sought to find a way to avoid providing an answer to the central question in the case. The decision to hear the case, it turned out, had come from the other side.
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.
That leaves the question of the fourth vote. The most likely answer is that it was that of Chief Justice John G. Roberts Jr., though he did not sound at all pleased on Tuesday to have the case before him.
There is also a chance that the fourth vote came from Justice Kennedy himself, and his very questioning provides support for that theory.
“I just wonder,” he said, sounding a little plaintive and a little angry, “if the case was properly granted.”
