SCOTUSblog's Tom Goldstein, who thinks that recognizing the right of same-sex couples to marry is inevitable, wonders whether the cases have come to the Court too fast for a favorable outcome:
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.
And the wrong test case brought too soon can cause real harm. A Supreme Court case is not like a proposed bill that, when Congress votes against it, you are no worse off. The rule maybe should be: do not ask the Supreme Court a question if you do not already know the answer.