Reply #57: I don't think it will make that much difference with Kennedy in terms of persuasion. [View All]

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He will do what he wants. My bigger worry would be pressure to avoid a 4-4 summary affirmance pushing Kennedy to join the four conservatives. But I don't think the justices will be inclined to decide an issue as major as this one on the basis of a fluke. If the vote is likely to be really close, they might just deny certiorari until they can get a DOMA case that Kagan is not recused from. Predicting the future is always hard though; who knows.