When Jurisprudence Runs Counter to Preference
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2010). Some argue, however, that her position on homosexual rights is unclear as she, in her official capacity as Solicitor General, stated that she would defend DoMA “if there is any reasonable basis to do so” (Lee 2010). Yet, President Obama announced that his administration no longer considers DoMA to be constitutionally sound, and if one again considers Nemacheck’s assertion that presidents nominate justices whose preferences align with their own, it is at least arguable that Kagan would not see a “reasonable basis” to defend DoMA. Altogether, I contend that Kagan’s personal ideological preference will lead her to strike down DoMA, either in alignment with, or despite, her position on federalism. This same strategic selection calculus applies to Justice Sotomayor who, when prompted about her views on same-sex marriage in her confirmation hearing noted that “society changes” (Committee on the Judiciary 2009, 128). She also forcefully defended the right to privacy on which both Romer v. Evans (1996) and Lawrence v. Texas (2003) relied (Committee on the Judiciary 2009, 128). Thus, I argue that Sotomayor, a life-long Democrat from the Bronx, will vote (with Justice Kagan) to strike down DoMA. Ginsburg and Breyer will likely follow suit. Both joined Kennedy’s majority opinions in Romer v. Evans (1996) and Lawrence v. Texas (2003) and both have a history of supporting civil rights. Justice Ginsburg, especially, has been a champion of gender equality. As a young attorney she wrote a brief for Reed v. Reed (1971) arguing that men cannot be categorically preferred over women for inheritance – the case that initiated the Court’s doctrine on gender discrimination (Harvard Magazine 2009). Ever since, she has struck down gender inequality whenever it has come before the Court, including in her perhaps most well known opinion, United States v. Virginia in which she forced Virginia’s state Military Institute to become co-educational because the state failed to provide “exceedingly persuasive justification” as to why such discrimination should be allowed (1996). As such, I contend that Ginsburg would apply the tests to which she so vigorously holds gender discrimination, to discrimination based on sexual orientation even if it means abandoning her traditional interpretation of federalism. Breyer, the son of a lawyer and an educator from San Francisco, who has joined Ginsburg in every of the aforementioned cases, will likely vote to strike down DoMA as well, despite his traditional position on federalism. Although his philosophy in Active Liberty (2005) suggests the Court should pay great deference to the “politicians… trying to achieve results that will benefit the people who elected them” (Toobin, Breyer 2005) and thus exercise judicial restraint. He noted that many of the great social ills in our history – slavery, discrimination, voting restrictions – were brought about by the Court’s activism, not by democratic government (Pakaluk 2006). As with Ginsburg, it does