The Supreme Court, unlike Lady Gaga, cannot afford to go big or go home. There has been speculation about whether the Court will rule narrowly or broadly in deciding the two gay rights cases on Tuesday and Wednesday. As my friend Barry Friedman argues in that Washington Post article and in his book, The Will of the People, the Court is never very far out of step with the public. But as Robert Barnes pointed out today in the Washington Post, while a majority of the public in opinion polls supports gay marriage, many states have passed outright bans on gay marriage. If it is true as Friedman and others have argued that the Court is not long out of step with public opinion, exactly how does one read the public opinion today on gay rights? The evidence seems to point to momentum for a shift in favor of gay marriage, but the jury is still out with so many states voting affirmatively to ban gay marriage.
The reason why the Supreme Court might not want to go big with a sweeping decision when the public is still divided on gay marriage is that the institution has no enforcement power. There is no Supreme Court police to enforce its decisions nor are unpopular decisions self-executing. The Court must rely on the other branches of government, mainly the President who has commander in chief power, to literally enforce its decisions. So it's unlikely, although I remain hopeful, that the Supreme Court will go big or go home when public opinion is shifting, but not entirely shifted.
Also a comment by Justice Kennedy might indicate how he would vote. A few weeks ago, he said he was uncomfortable with the fact that 9 insulated people were deciding hot botton issues for the whole country. It seems to indicate he'd favor a more narrow ruling instead of going big, broad, and sweeping.