chris4290

[20 minute track of complete silence]

Though not really the case here, there are some parts of constitutional law that essentially require the court to look at evolving consensus and popular opinion. What is considered "cruel and unusual punishment" under the 8th amendment is, more or less, decided by assessing current opinion and social standards. Check out Kennedy v. Louisiana as an example of that. Among other things, the Court simply tallied up all the states that had a death penalty (still a majority of them),looked at the number of states that USED to have a death penalty (showing momentum against), and then looked at the rest of the world's view on the practice. That was some of their most important evidence in the decision (which interestingly enough also written by Kennedy. It should give you a good idea of how much kennedy loves to poll opinions and forge middle ground before writing something)

The same goes for privacy. When phrases like "reasonable expectation of privacy" direct jurisprudence, the consequence is that, more or less, we have the amount of privacy that we expect. i.e., our societal attitude towards it.

Not necessarily the case in Windsor, but 1) societal attitude very often should affect the Court's opinion, if only as a subtle factor, and 2) the court is still a political being, despite our theoretical intentions.