"This is a conservative court -- conservative ideologically and conservative in the sense that they like to take baby steps, and it seems very unlikely that they would make some big radical move requiring all states to recognize same-sex marriages," Goldstein said. "They are much more likely to do something a little more modest. The other thing about them is that they don't want to be on the wrong side of history. It seems pretty clear where this is going with a much broader recognition of same-sex marriage, and so the justices don't want to call that into question when the country is headed in that direction."
In fact, the court has set itself up to "punt" on both Proposition 8 and DOMA, avoiding for now consideration of the constitutional questions.
This "legal letdown" could turn on "standing," or the legal authority or eligibility to make the case. California's governor has refused to defend Proposition 8 in court, leaving a coalition of private groups to step in. Can they satisfy court scrutiny by establishing there would be legitimate "harm" to themselves if the lower court ruling stands?
The justices could also "DIG" it -- or have the case "dismissed as improvidently granted." Basically the justices would be saying they should not have taken the Proposition 8 appeal in the first place.
Justice Sonia Sotomayor at the March oral argument suggested as much: "If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?" Some of her conservative colleagues seemed to agree as well.
The differences between rejecting the case on standing or DIG grounds would be important. A DIG would likely mean lower court rulings striking down Proposition 8 would hold, allowing California gay and lesbian couples to marry if they chose. How quickly that would happen would be unclear if further legal challenges were filed.
But a "standing" ruling would likely nullify everything, perhaps forcing both sides to start all over again in the lower courts, and limiting the reach of gay marriage to perhaps only a few California counties. Another likely statewide referendum next year could finally settle the matter. Recent polls show growing support for same-sex marriage in California, reflecting a trend nationwide.
DOMA has its own sticky procedural questions. Obama now supports gay marriage, and has refused to defend the 1996 federal law. That has left House Republicans as the official parties in support of DOMA.
So the court could also dismiss that case on standing grounds, but most legal analysts see a more substantive ruling on DOMA's merits.
Picking winners and losers at this stage is a subjective, even partisan, exercise. The court itself will be both cheered and vilified however it rules. But as an institution, it has survived similar crises of confidence over its discretionary authority in rulings involving slavery, racial integration, corporate power, abortion -- even Bush v. Gore.
Rapid-fire reaction to these big cases will be swift and furious from the professional punditry and halls of government. Some individual Americans stand to gain from the decisions, others could be hurt financially, emotionally, and physically.
So why entrust all this in the hands of nine judges?
The Supreme Court usually gets the last word in these matters, regardless of whether one agrees with the decisions. That is true even in matters of life and death, which many argue are the stakes in this health care debate.
Justice Robert Jackson, on the court from 1941 to 1954, may have put it best: "We are not final because we are infallible, but we are infallible only because we are final."