In light of the Court's five-to-four decision a little over a year ago in Windsor v United States, in which the Court held the federal Defense of Marriage Act unconstitutional, it is virtually certain that the five justices in the majority in Windsor (Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) would take the next obvious step and hold state laws prohibiting same-sex marriage unconstitutional as well. Indeed, that is why lower federal court judges have been almost unanimous since Windsor in reaching that result. With that understanding, it is obvious why none of the four dissenters in Windsor (John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito) voted to hear this round of cases. But why did the justices who were in the majority in Windsor also vote not to hear these cases?
When jurors receive that summons in the mail, they believe the court commanded them to attend, not the Constitution. Such a reality inverts role that juries were expected to play. Citizens have lost the sense that jury duty is constitution duty, and that "we the people" are responsible for our government.
On Constitution Day, let us remember that our American government was designed to put checks on the power of individuals in government who might slip out of control and begin making their own rules. The use of torture and cruelty was authorized by a handful of officials who believed they were exempt from oversight or review.
The election of Barack Obama was the Lexington and Concord in the latest great battle of race in America. We are a nation at war with itself. For all of our desire to move beyond the narrow confines of many of the events of our tragic history, we cannot. The president's election gave new life to what had been lying dangerously dormant for the better part of 50 years.