In a surprisingly frank post. Tom Goldstein of  SCOTUSBlog™ , who has done more than his share of arguments before the Supreme Court, offers some inside baseball concerns about the gay marriage cases awaiting the Court’s blessing.

The upshot is that the parties and lawyers driving the gay-marriage cases have cornered the Justices. They brought and won cases striking down a federal law, a California initiative, and an Arizona statute.

In fact, these are test cases. On day one, the lawyers knew that persuading the lower courts just meant they would end up here. They wanted to force the Justices’ hands.

It worked. Even if the Court wants to stay out, it cannot.

In other words, you got what you asked for. Now are you sure you really want it?

The dilemma for gay rights advocates is that these test cases may be too much, too soon. Too much because Justice Kennedy – the decisive vote – is a conservative on a conservative Court, and many conservatives view heterosexual marriage as foundational.

Too soon because while our culture has rocketed ahead to acceptance of gay marriage, the Court generally rides a horse and buggy. Often, that is just what we want: a Court that does not get pulled along by the tides of the moment.

The issue must be addressed, but are these the Nine we want deciding it? On the one hand, we don’t get to pick the judges who will decide the test cases. On the other, we don’t want to wait another generation or two for a court majority that has caught up with the rest of the nation.  On the third hand, who knows when we will get a Supreme Court comprised of justices who aren’t so deeply embedded in the past, or religion, or politics, that they feel the nature of cultural shifts that allow for foundational change?  And do we want to condemn the next generation or two to living under the thumb of old law based on out-of-date cultural norms until most of the judges get it?

Without the time to adapt, this Court is unpredictable.  Take Bush v. Gore and Obamacare.  The constitutional claims in both cases were generally regarded as ridiculous. But the cases raced ahead to the Court.  And both claims won, with only the Chief Justice saving the health care statute.

That is why other historic test cases like Brown v. Board of Education are so different.  The NAACP controlled race discrimination litigation.  It built a body of lower court and Supreme Court decisions over years.  The Court had time to adapt before it had to decide.

And of course, Brown was decided by a very different Court.  You cannot point to many liberal test cases that won in recent decades.  Conservatives have won on guns and affirmative action; they lost on property rights.  But for pretty good reasons, the left does not even try.  Progressive groups spend all their energy keeping cases away from this Court.

As wonderful as it may appear to have an issue before the court of the historic, foundational nature as Brown v. Board of Education, imagine what our world would look like if the Court had ruled the other way. It’s inconceivable now, but it wasn’t then. And the NAACP spent much time and effort free lessons at Arthur Murray before taking it to the big dance.  It was not going to blow its one big chance at changing the world.

Ohio State lawprof Doug Berman, in a rare commentary, reacts.

[T]his post has a flourish concerning the conservative leanings of the court Supreme Court that reflects what I see as a persistent and problematic myopia concerning criminal justice issues now reflected in the view of many (if not most) of the elites who follow and discussion the work of the Roberts court.  Here is the passage that got under my skin:

You cannot point to many liberal test cases that won in recent decades. 

Berman gives a list of decisions, ranging from Crawford in 2004 to Miller in 2012, to show that the Supreme Court has hardly been as conservative as Goldstein claims, and has in fact been pretty progressive.

I am a bit frustrated that Tom Goldstein does not in this context acknowledge that the Supreme Court right now is, in fact, acting in quite progressive ways on behalf of criminal defendants (which is, of course, one huge way in which the Warren Court established its liberal reputation).  But the myopia in his recent post strikes me as symptomatic of a broader failing among SCOTUS elites and (too) many progressive elites who fail to focus upon or even recognize the extensive harms being done to various vulnerable populations through modern mass criminal justice systems.

Apparently, anyone who thinks the Supreme aren’t up to warp speed are dismissed as myopic “elites,” a rather disturbing resort to ad hominem characterization. At least Berman’s commentary received the applause Bill Otis, who has never met a sentence that was too harsh.

While Berman’s laundry list of criminal defense wins before the Supreme Court has some merit, though not all were as progressive as some seem to think, it misses a critical distinction in Goldstein’s argument. There are big cases and small cases, big shifts and small shifts. Heller, for example, was a big decision.  As it turned out, so was Booker in 2005, but it took the Supremes until 2007 in Kimbrough/Gall before anyone took it seriously.

But as much as those of us engaged in criminal law focus on cases that impact our practice and our clients, almost all of these decisions are, in the grand scheme of things, nibbling around the edges of the law. Fighting over whether sentences are imposed by judges or accountants is big to us, but hardly a seismic shift for society. 

Brown v. Board of Education was a cultural shift in American society, affecting everyone and everything that would follow.  Gay marriage is an issue of nearly that magnitude.  Telling non-citizens of immigration consequences of conviction, per Padilla in 2010, isn’t in the same ball park.

Look at a bug under a microscope and it’s going to appear much bigger than it really is. We all suffer the conceit of myopia to some degree, focusing as we do on the issues that matter most to us. We believe them to be more important, more significant, to society than they turn out to be. It’s not that they’re insignificant, but they aren’t earth-shattering. Truly foundational decisions come along very rarely.

Goldstein speaks to a cultural shift that has already happened in America, with only nine people who live cloistered lives left to decide whether it meets their sensibilities.  Berman compares it to bugs under his personal microscope because his own myopia precludes him from realizing that gay marriage reflects a cultural shift of a fundamentally greater magnitude. 

Like Berman, I spend a lot of time parsing the details of decisions affecting criminal law. Unlike Berman, I recognize that Goldstein is talking about something bigger than the issues that fascinate me.