Arguments from the Future– A New Modality of Constitutional Argument | Jack Balkin at Balkinization

Jack Balkin at Balkinization: At a meeting of the Supreme Court Clinic this evening, we discussed the upcoming arguments in the Marriage Cases. We considered what arguments would likely weigh most heavily with the Justices. I noted that one of the strongest influences on the Justices, and especially Justice Kennedy, was how they believed their decisions would look in in ten or twenty year’s time. Would they be seen as defenders of liberty and equality, or would they be viewed in hindsight as defenders of prejudice, fighting against the tide of progress?