Irin Carmon is one of several people to make this catch as Justice Ginsburg may have let the country see a card or two hidden in her jabot for June as she officiated at a same-sex marriage over the weekend.
Over the weekend, less than a month after the Supreme Court heard arguments on the constitutionality of same-sex marriage bans, Supreme Court Justice Ruth Bader Ginsburg presided over the wedding of Shakespeare Theatre artistic director Michael Kahn and interior designer Charles Mitchem. According to New York Times columnist Maureen Dowd, a guest at the wedding, Ginsburg delivered her portion, including saying she was officiating by the power vested in her by the United States Constitution, “with a sly look and special emphasis on the word ‘Constitution.’“
Dowd wrote that guests applauded, though “no one was sure if she was emphasizing her own beliefs or giving a hint to the outcome of the case the Supreme Court is considering whether to decide if same-sex marriage is constitutional.” A decision in that case, which will determine whether same-sex marriage is recognized throughout the country, is expected at the end of the term, usually late June.
No one seriously believes that Ginsburg, a liberal stalwart on the court, will be the swing vote in the decision in the case, Obergefell v. Hodges – that would be Justice Anthony Kennedy. The justices generally meet a few days after a case is argued for a closed door conference to take an initial vote tally and assign opinions, so under normal circumstances, Ginsburg would already know the case’s outcome. But more likely, the often-careful Ginsburg was emphasizing “constitution” at that moment to underscore her own vision of that document, which she has long held can expand to embrace people who were left out at the founding – including gays and lesbians.
So more likely she's making her own legal views (as well as her own personal ones) clear, which is nothing that should surprise anyone paying attention.
As for the constitutional language, it’s part of Ginsburg’s standard wedding terminology, according to this reporter’s forthcoming biography of Ginsburg, much to the awe of one of her clerks. In 2000, Ginsburg presided over the wedding of her former clerk, Paul Berman, to a former clerk for Justice Harry Blackmun. “I’ll never forget the end,” Berman, now a law professor at George Washington University, recalled. “Instead of ‘by the power invested in me, by whatever’ she said, ‘by the power vested in me by the United States Constitution.’ My wife always jokes that if we got divorced it would be unconstitutional.”
Or maybe it's a wink and a nod. Who knows? We have about a month and change to find out for sure.