Category Archives: Politics

The power of the bully pulpit

Media, Politics, , , , ,

There’s been a lot of talk lately about Obama’s (non-)use of the bully pulpit in pressing his agenda, especially in the wake of his administration’s embarrassing defeat on gun control. Maureen Dowd kicked things off on Sunday:

How is it that the president won the argument on gun safety with the public and lost the vote in the Senate? It’s because he doesn’t know how to work the system. And it’s clear now that he doesn’t want to learn, or to even hire some clever people who can tell him how to do it or do it for him.

It’s unbelievable that with 90 percent of Americans on his side, he could get only 54 votes in the Senate. It was a glaring example of his weakness in using leverage to get what he wants. No one on Capitol Hill is scared of him.

Even House Republicans who had no intention of voting for the gun bill marveled privately that the president could not muster 60 votes in a Senate that his party controls.

That got the ball rolling. Yesterday, The New York Times Michael D. Shear and Peter Baker reported on the same theme:

Senator Mark Begich, Democrat of Alaska, asked President Obama’s administration for a little favor last month. Send your new interior secretary this spring to discuss a long-simmering dispute over construction of a road through a wildlife refuge, Mr. Begich asked in a letter. The administration said yes.

Four weeks later, Mr. Begich, who faces re-election next year, ignored Mr. Obama’s pleas on a landmark bill intended to reduce gun violence and instead voted against a measure to expand background checks. Mr. Obama denounced the defeat of gun control steps on Wednesday as “a shameful day.”

But Mr. Begich’s defiance and that of other Democrats who voted against Mr. Obama appear to have come with little cost. Sally Jewell, the interior secretary, is still planning a trip to Alaska — to let Mr. Begich show his constituents that he is pushing the government to approve the road.

The trip will also reinforce for Mr. Begich and his colleagues a truth about Mr. Obama: After more than four years in the Oval Office, the president has rarely demonstrated an appetite for ruthless politics that instills fear in lawmakers. That raises a broader question: If he cannot translate the support of 90 percent of the public for background checks into a victory on Capitol Hill, what can he expect to accomplish legislatively for his remaining three and a half years in office?

But Jonathan Chait isn’t having any of it:

During Bill Clinton’s first two terms, a Democratic senator from a red state (Richard Shelby of Alabama) defected on key votes. Clinton tried the “ruthless” approach of punishing Shelby by denying him these sorts of discretionary executive branch perks — first limiting his tickets to a ceremony honoring the Alabama football team, then threatening to move some NASA jobs out of his state. The tactic was universally seen to have backfired.

Did it really backfire? Probably not. Shelby voted the way he did because he assessed his own beliefs and interests. But that is the beauty of ignoring structural factors for stories about people: You can always tell a new one. If the president was nice, he should have been mean. If he was mean, he should have been nice. (Unless he prevailed, in which case his shrewd politicking saved the day!)

…

Obama faces a House controlled by far-right Republicans, and a Senate majority not sufficient to break what has become a routine supermajority requirement. And note that despite his national majority, Obama carried only 48 percent of House districts and 52 percent of the states, short of the threshold for passing laws in either chamber, which suggests that even a perfect effort to apply his popularity to any given issue is insufficient to pass a law.

Chait has a point. But I think there are two questions at play here simultaneously. One relates to Obama’s seeming unwillingness to get his hands dirty and shake some senators down, LBJ-style. The other is essentially a structural problem: when the vast majority of Americans support a legislative measure and it fails to succeed, one must ask whether our system is designed correctly for modern governance.

The answer to that question is almost assuredly no. The very fact that many news organizations now refer to votes that fail to obtain a supermajority in the same way they report on ones that don’t even receive a simple majority — as if the two scenarios equally demonstrate the bill’s unpopularity — is proof that the grinding inefficiency of Congress has permeated all aspects of our political activity. Broken institutions are so commonplace we don’t even notice them anymore.

This part is not Obama’s fault. But ironically enough, what the president’s team excelled at during his presidential campaign — setting the tone of the conversation early and defining his opponent before he had a chance to introduce himself to the broader public — his administration has abjectly failed at now. Virtually every major proposal Obama has introduced since he took office has been exaggerated, demonized, castigated, and lied about incessantly — only now and then provoking long-overdue and (by that point) completely ineffective responses in defense. So there is something to the bully pulpit theory. But it has less to do with what Obama should do today, now that gun control has lost anyway, and more to do with what he should have done years ago.

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The bombing backlash, and a false equivalence

Media, Politics, , , , , , , , , ,
bagmen
Mm, not so much.

Jonathan Chait recaps the checkered performance of the media and the public in the Boston marathon bombing story:

In polarized America, both the reds and the blues have legitimate reason to fear that a tragedy will unleash an overly broad backlash. Liberals recall the false blame heaped on Muslim terrorists after Oklahoma City, and the real blame of 9/11 transforming into a fever of Bush-worship and jingoism. Conservatives recall mainstream reporters rushing to blame them, falsely, for shootings in Aurora and Tucson. It is also true that many Americans are eager, in senseless and fearful situations, for confirmation that the particular evil on display is the brand that conforms to their particular worldview. On Monday, there was comfort for some in the idea that the bombing was an act of tea-party loonies looking to exploit tax day. Among that same cohort was relief when the first pictures of the Tsarnaevs were released: The suspects were white, not Arab—maybe they were just another set of crazed teens with access to firearms. All week, nearly everyone was in a frenzy to profile, even those who should have known better.

There’s just one problem with this analysis: the consequences of misidentification are disproportionately stacked on one “side.” After the Oklahoma City bombing, the arrest and eventual execution of Timothy McVeigh had relatively little impact on American foreign and domestic policy. Sure, security was beefed up around federal buildings and other areas of interest, and President Bill Clinton attempted to leverage the attack into increased government powers, but life mostly went on.

Even after Aurora and Tucson, no one was rushing to strip conservatives of their legal rights, to surveil them more intensely, or anything else of the sort. Even if the killers had been conservatives, the most that liberals could’ve achieved is to point out (quite fairly) that conservatives can be just as extremist and violent as liberals (or liberals’ perceived “allies:” more on that in a moment).

Take, for example, the Norwegian massacre in 2011. Much of the American media rushed to broaden the scope of the gruesome attack, speculating immediately that the perpetrator was Muslim and, in so doing, implicating an entire religion. When it turned out he was a Christian conservative extremist instead, the cacophony of media bloodlust and anti-Muslim vitriol dwindled to mere whispers, the target of public anger was narrowed to a single man, and familiar defenses were trotted out: he was a lone madman, he didn’t represent any group other than himself, etc. These are, of course, sentiments not afforded Muslims and Arabs very often by these same publications.

There are, in other words, very light societal consequences for terrorism committed by ideological neighbors of the American conservative spectrum. But how quickly the tables turn when the suspect is a Muslim. (This is, in itself, an irony: nothing about fundamentalist Islam is remotely linkable to conventional liberalism, whereas fundamentalist Christianity is a crucial element within American conservatism. Islamic fundamentalism is, in fact, a much closer cousin of its Christian counterpart than it is of American progressivism.)

When the suspect is a Muslim, the consequences tend to be far greater and the overreactions more severe. September 11th, via a combination of mass hysteria, presidential incompetence, and public geopolitical ignorance, became a clear example of the catastrophe that can be unleashed on people-groups even in countries completely unrelated to the attacks.

A similarly frenzied dynamic is already enveloping the Boston Marathon bombing suspects, in some quarters. None other than U.S. Senator Lindsey Graham began publicly advocating the denial of basic rights to Dzhokhar Tsarnaev yesterday (a plea that was eventually successful, using a controversial “public safety” measure):

Indeed, Graham, joined by Senators John McCain and Kelly Ayotte, as well as Representative Peter King, released a statement imperiously deeming Tsarnaev a “good candidate for enemy combatant status” and concluding:

We hope the Obama Administration will consider the enemy combatant option because it is allowed by national security statutes and U.S. Supreme Court decisions.

We continue to face threats from radical Islamists in small cells and large groups throughout the world. They have, as their primary focus, killing as many Americans as possible, preferably within the United States. We must never lose sight of this fact and act appropriately within our laws and values.

Even seemingly unrelated public policy issues are coming under fire as a “result” of the Boston Marathon bombing. See this piece from today, for example:

Opponents of immigration reform — the most promising priority of Obama’s second term remaining after the defeat of gun control — are already using the attack to try to slow progress on a bipartisan Senate bill.

More broadly, the attack is raising questions about how the administration should deal with 19-year-old Dzhokhar Tsarnaev, who was captured Friday after an exhaustive manhunt in Boston, and concerns over whether the FBI was too complacent in letting his older brother Tamerlan Tsarnaev out of its sight after interviewing him in 2011.

So yes, it is true that, once the initial shock of the tragedy itself has been absorbed, both liberals and conservatives begin wincing at the possible fallout depending on who committed the crime. But as we have learned well over the years, public policy changes most when the suspect is part of a group used as a favorite conservative punching bag (in this case, Muslims). When the suspect is in any way connected to conservatism, the consequences are virtually nonexistent.

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Thoughts on NYT Op-Ed re: Teacher Professionalization

Education, Politics, , , , , , ,

I don’t normally write on non-higher ed issues in education, but this recent New York Times op-ed piece entitled “Teachers: Will We Ever Learn” has gotten a fair amount of traction on the interwebs. In fact, I heard about it in several emails from friends and colleagues who care about education issues as much as I do, so I thought I’d share my response to some of the key sections of the op-ed (which I encourage you to read in full):

In April 1983, a federal commission warned in a famous report, “A Nation at Risk,” that American education was a “rising tide of mediocrity.” The alarm it sounded about declining competitiveness touched off a tidal wave of reforms: state standards, charter schools, alternative teacher-certification programs, more money, more test-based “accountability” and, since 2001, two big federal programs, No Child Left Behind and Race to the Top.

But while there have been pockets of improvement, particularly among children in elementary school, America’s overall performance in K-12 education remains stubbornly mediocre. Continue reading Thoughts on NYT Op-Ed re: Teacher Professionalization →

Obama FY2014 Budget Proposal: Implications for Higher Ed

Education, Politics, , , , , , , , ,

The Obama administration just released its budget proposal for Fiscal Year 2014, and the Twittersphere tweeted and retweeted all over itself, highlighting budget details and how they might affect certain programs. This blog post won’t look at the overall budget (or even all education issues) but instead will focus on its impact on higher education. Although not every one of these proposals will actually come to be, it’s still worth fleshing out the juiciest higher education highlights (details on pages 82-84 of that link).

Provide $1 Billion for Race to the Top Focused on Curbing College Tuition

Proposing a higher ed Race to the Top (RTTT) competition isn’t entirely new. The Obama Administration also included it in its budget proposal last year; however, it failed to make the final cut. With college affordability in arguably no better shape a year later, there is hope that a higher ed RTTT may actually happen this year.

Create a First in the World Fund to Spur Innovation to Boost College Affordability

The proposal sets aside $260 million to incentivize new ways of delivering higher education and increasing postsecondary access and affordability. This seems to be geared toward exploring more ways to build on massive open online courses (MOOCs) and community organizations focusing on college access issues. The idea here has also been proposed before, but it has likewise not been funded.

Boosting Campus-Based Aid Programs Based on Enrollment and Graduation Rates Among Low-Income Students

This proposal directs more than $10 billion toward Supplemental Educational Opportunity Grants (SEOG), Federal Work Study, and Perkins Loans. Part of this boost includes a $150 million increase for the Federal Work Study program to double the number of participants over five years. Perhaps most interestingly, this idea proposes reforms that would tie the amount of campus-based aid to institutions’ efforts to enroll and graduate low-income students.

Lock In Student Loan Interest Rates at Market-Based Rates

Current student loan interest ranges from 3.4% to 6.8%, depending on the program. The proposal suggests tying interest rates to the government’s cost of borrowing, which means interest rates would likely be tied to 10-year Treasury notes and include additional rates of 0.93% for subsidized Stafford loans, 2.93% for unsubsidized Stafford loans, and 3.93% for loans for parents and graduate students. The rate on new loans would be set each year based on the market rate.

Maintain Pell Grant Maximum Award at $5,645 Through 2015-16

As the Department of Ed’s document of highlights notes, the Pell Grant maximum award has increased by $915 since 2008, which is welcome news for low-income and lower-middle-income undergraduate students. As I’ve written before, part of the challenge of maintaining Pell Grant funding is ensuring fiscal sustainability for its long-term viability.

Provide Funding for Further Research on Student Aid for Postsecondary Education

The proposal calls for $9 million for upgrades to the National Student Loan Data System (NSLDS) to improve federal data on postsecondary students. It also proposes $8 million for more frequent surveys of postsecondary students to gather data on who receives student aid, enrollment patterns, and graduation rates for those who receive federal financial aid. Finally, it includes $67 million for research and evaluation of federal student aid.

Of these main higher ed highlights, the one that will get the most noise is likely the proposal tying student loan interest rates to market-based interest rates, as Libby Nelson of Inside Higher Education noted:

https://twitter.com/libbyanelson/status/322019199897722880

More interesting, though, is the second half of her tweet, which predicts that the campus-based aid idea of tying funding to outcomes for low-income students might actually receive the most pushback. In considering all of these proposals, I would have to agree with this assessment, because institutions rely heavily on these aid programs to retain their students.

Aside from the Pell Grant highlight (which doesn’t propose anything new), none of the other proposals are as closely tied to direct student funding as the campus-based aid programs. By this, I mean that the RTTT and First in the World competitions would both provide additional funding that institutions and states would not already have received under current budget formulas.

The budget also calls for making the American Opportunity Tax Credit (AOTC) permanent, which would provide up to $2,500 for higher education costs. The threshold for eligibility is higher, which includes more middle-income households (who tend to benefit more from tax credits like this  anyway), and it allows for book expenses and is available for the first four years of college.

While other areas of the Obama budget might have clear winners and losers, it’s hard to say whether higher ed is a winner or loser IF (and it really is only an “if”) all of these proposals are ultimately funded (which is entirely unlikely). In this scenario where each proposal is indeed funded, I would probably lean slightly toward higher ed being more of a loser than winner, given that student loan interest rates will likely increase using market-based rates, and campus-based aid programs might become more limited if tied to low-income student outcomes while college tuition is likely to continue to rise. On this last point though, the goal of the higher ed-focused RTTT is to contain tuition increases, but I have a hard time seeing enough substantial funding from states to offset the increases that have occurred in recent years.

Instead, I probably share more of the sentiment that Rep. George Miller (D-CA), the senior Democrat of the House Education and the Workforce Committee, expressed in his statement on the Obama budget: while it rightly focuses its proposals on addressing college affordability, some of the deeper-rooted issues may be best resolved through reauthorization of the Higher Education Act (which Congress is supposed to reauthorize this year). While I do hope that the renewal of the HEA can provide long-term solutions for student loans, student aid programs, and college affordability, the question is whether Congress will actually reauthorize it on-time (they delayed the last reauthorization from 2003 to 2008).

Whether through the final budget for Fiscal Year 2014 or the reauthorization of the HEA, it’s clear that college affordability should be a priority to ensure that all students have the chance to pursue postsecondary education if they so desire.

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“A gun is the most powerful device there is to accessorize the ego.”

Politics, , , ,

Adam Gopnik has penned a beautiful piece for The New Yorker that gets to the heart of the American gun problem:

And so the real argument about guns, and about assault weapons in particular, is becoming not primarily an argument about public safety or public health but an argument about cultural symbols. It has to do, really, with the illusions that guns provide, particularly the illusion of power. The attempts to use the sort of logic that helped end cigarette smoking don’t quite work, because the “smokers” in this case feel something less tangible and yet more valued than their own health is at stake. As my friend and colleague Alec Wilkinson wrote, with the wisdom of a long-ago cop, “Nobody really believes it’s about maintaining a militia. It’s about having possession of a tool that makes a person feel powerful nearly to the point of exaltation. …I am not saying that people who love guns inordinately are unstable; I am saying that a gun is the most powerful device there is to accessorize the ego.”

…

We should indeed be as tolerant as humanly possible about other people’s pleasures, even when they’re opaque to us, and try only to hive off the bad consequences from the good. The trouble is that assault weapons have no good consequences in civilian life. A machine whose distinguishing characteristic is that it can put a hundred and sixty-five lethal projectiles into the air in a few moments has no real use except to kill many living things very quickly. We cannot limit its bad uses while allowing its beneficial ones, because it has no beneficial ones.

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“Gun shops were jammed.”

Media, Politics, , , , , , ,
The New York Times is at it again.
The New York Times is at it again.

Last month, I noted an article by The New York Times‘ Sabrina Tavernise and Robert Gebeloff, in which the two reported a long-term, steady decrease in gun ownership. They explained:

The findings contrast with the impression left by a flurry of news reports about people rushing to buy guns and clearing shop shelves of assault rifles after the massacre last year at an elementary school in Newtown, Conn.

“There are all these claims that gun ownership is going through the roof,” said Daniel Webster, the director of the Johns Hopkins Center for Gun Policy and Research. “But I suspect the increase in gun sales has been limited mostly to current gun owners. The most reputable surveys show a decline over time in the share of households with guns.”

In my post, after providing three examples of recent Times articles (here, here, and here) that had noticeably contributed to the aforementioned “flurry of news reports” about people rushing to buy guns, I concluded:

One can be forgiven for reading The New York Times and leaving with the impression that, yes, the entire country is stampeding its nearest weapons shops and loading up on anything with a trigger. This is just the latest in a long line of examples of the media helping to create a story, then reporting on the fallout from that story from a detached perspective, as if the press had nothing to do with the preceding whirlpool of artificially manufactured “news” in the first place.

Well, as you can see above, the Times has yet to lose its appetite for stories about panicked weapons rushes:

Guns shops were jammed. Gun manufacturers were angry. Gun-control advocates were thrilled. Many legislators were torn.

But as President Obama on Tuesday announced a visit to Connecticut next week in the wake of an agreement on a far-ranging package of state gun legislation, Connecticut was bracing for the consequences, intended or not.

The most immediate result of the agreement, which came more than three months after the massacre of 26 children and educators in Newtown, was a run on gun shops on Tuesday, following months of already brisk sales. Gun owners are rushing to buy weapons, ammunition and magazines in anticipation of limits on their sale and possession.

…

Vic Benson, co-owner of the Freedom Shoppe, a gun shop in New Milford, said that his store was not usually even open on Tuesday, but that he opened its doors in anticipation of panicked buyers, and also to get rid of inventory he thinks he will be unable to sell after lawmakers vote on Wednesday.

The only indication in this entire article that all is not as depicted is the muted phrase “Gun owners are rushing…” — meaning that it is current owners, and not prospective gun buyers, that are leading the proverbial charge.

Look, the point isn’t that the Times shouldn’t cover news. And to some extent, delirious gun enthusiasts rushing their nearest weapons depot for a recharge so they can continue to shoot their high-powered guns with impunity even after stricter gun control legislation is passed is news.

Nevertheless, I would venture to guess that the Times‘ venerable voice is not well-utilized by devoting significant space in at least four articles in just over three months to the wildly exaggerated fears of armed paranoiacs. Perhaps, for example, some of those column inches could go towards additional coverage of shooting victims. Or of car dealerships, baseball, or whatever. After awhile, one starts to get the point: a lot of people love guns, and the Times is all over it.

But the larger point is that it’s ludicrous to continue covering these gun shop rushes on the one hand, while simultaneously remarking — as Tavernise and Gebeloff did — on the misleading “impression left by a flurry of news reports about people rushing to buy guns and clearing shop shelves of assault rifles,” as if the Times itself had nothing to do with creating this perception.

This paradox is especially concerning precisely because of what Tavernise and Gebeloff point out: gun ownership is decreasing. So publishing article after article portraying gun shops as overwhelmed by the demand for their products not only makes for boring reading, but doesn’t really present an accurate picture either.

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Are online paywalls too little, too late?

Media, Politics, Technology, , , , , , , , , ,
Courtesy of LUMA Partners.
Courtesy of LUMA Partners LLC.

Michael Wolff thinks so:

Without a dramatic turnaround in advertising income, there are only two strategies – neither mutually exclusive – for the continued existence of newspapers, in digital or any other form:

• Having established the paywall model, the goal, in a race against time, is to extend it to a greater and greater part of the user base. Like the paywall itself, this is unchartered territory. Rupert Murdoch’s more absolute paywalls having worked significantly less well than the New York Times’ porous wall. The Times, however, counting on its brand power and on the gradual change in consumer behavior, is trying to up the ante, recently cutting its free take from 20 to ten articles.

• Re-orient the cost basis of the business, still largely modeled on advertising income, to the much smaller subscription revenue base. That is, fire a lot of people.

This is, actually, good news, if not necessarily for shareholders or for many employees. Some newspapers can continue to exist, albeit as vastly smaller and less profitable businesses.

I have a few points in response. First, Wolff characterizes newspapers’ plummeting revenue in the following terms: “A digital advertising environment on the web – one even more pronounced in mobile – that relentlessly increases the amount of advertising space available and lowers the value of all space overall.”

Wolff is mostly right, for now. But that’s only because advertisers have yet to figure out what’s valuable. I worked in online advertising for two years (including one year for a behavioral targeting firm), and I can say with some confidence that we still don’t have adequate metrics to measure advertising success online — hence the degradation of online real estate. But soon enough, the advertising landscape will have to revert to form.

Why? Well, because advertisers don’t like paying for something that provides no value. It’s astonishing just how little advertisers still know about their own data in 2013 — that is, the audiences on their own web sites, the customers buying their products, and so on. The problem is even worse when it comes to connecting with new audiences, also known as advertising. Not only do the companies themselves not understand the data, but many of the online advertising firms that these companies have hired know little about what they’re selling as well. (Take a look at the above headache-inducing graphic of the online media landscape to understand why.) Continue reading Are online paywalls too little, too late? →

House Republicans are coming around. Slowly. Finally.

Humor, Politics, , , , , , ,
Today's New York Times front page.
Today’s New York Times front page.

Light at the end of the tunnel? One can only hope. But whatever the reason — political expediency, acknowledgment of a battle lost, cynical opportunism, or something else entirely — it’s an encouraging development nonetheless. Considering that the foundation of Obama’s healthcare law was a Heritage Foundation proposal, it’s about damn time.

UPDATE: Happy April Fool’s Day.

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DOMA likely to fall, but how much further will Kennedy go?

Law, Politics, , , , , , , , , , , , , ,

Edie Arrives in Court

Edith Windsor, the 83-year-old plaintiff challenging the Defense of Marriage Act, arrives at Court with attorney Roberta Kaplan. Picture by Chip Somodevilla/Getty Images, found via ABC News.

Justice Anthony Kennedy had a choice to make this morning. In deciding the fate of the Defense of Marriage Act, should he go with a theory of federalism that emphasizes respect for states’ rights, or a wider-ranging theory of equality that might result in heightened legal protections for gays and lesbians across the United States?

Kennedy picked the former route and clung tightly to it today in a 110-minute oral argument for United States v. Windsor that put the swing Justice on firmer jurisprudential ground than yesterday’s Proposition 8 case. While the facts of Hollingsworth v. Perry pitted states’ rights and equal protection for gays directly against one another, leaving Kennedy confused as to which of a variety of unpalatable options he should choose, the legal issues in the Windsor case presented no such conflict. Rather, the state’s voters and the law’s challengers aligned in Windsor, where they merely asked the federal government to respect nine states’ decisions to recognize same-sex marriages. Here, the principles of federalism and equal protection both point to the unconstitutionality of DOMA.

Assuming that the Court doesn’t decide the case based on standing grounds, Justice Kennedy seemed perfectly content on Wednesday to limit any eventual ruling to the first question about states’ rights. He repeatedly reminded Paul Clement–the attorney tasked by the House of Representatives to argue in support of DOMA, since the Obama administration refused to defend it–that the right to define marriage (and the rest of family law) is “the essence of the State police power.” Kennedy also expressed concern over the sheer number of federal benefits provided based on marital status–1,100 and counting–noting that this means “the Federal government is intertwined with the citizens’ day-to-day life,” interfering with the state’s traditional “prerogative.”

Despite earlier rulings on gay rights cases that indicated a willingness to extend heightened judicial protections to gays and lesbians under the Fourteenth Amendment–an equality-based argument that would have far greater reach and be far more potent against discriminatory laws than a states’ rights takedown of DOMA–Kennedy appeared very hesitant to reconsider equal protection principles today (an issue on which he had also shown confusion at the Proposition 8 discussion yesterday). Several times during the oral argument, a fellow Justice or attorney would bring up Fourteenth Amendment considerations, and Kennedy would immediately steer them back to the federalism issues.

Sensing that its crucial fifth vote was reluctant to revisit arguments about equality, the liberal wing of the Court was happy to run with Kennedy’s line of thinking and echoed many of his concerns in follow-up questions. (One of the many perks of being a swing justice must be getting to set the tone for the oral argument and watching the rest of your colleagues follow along.) Justice Sotomayor asserted that the states, and not the federal government, control the institution of marriage, Kagan made reference to “historic State prerogatives,” and Ginsburg reiterated Kennedy’s sentiment that DOMA touches “every aspect of life” in a “pervasive” manner.

Kennedy’s hesitation notwithstanding, Justice Kagan in particular seemed intent on exploring heightened legal protection for gays and exposing DOMA as outdated legislation impermissibly based on animus. At one point, she dismantled Paul Clement’s arguments about legitimate government purposes for DOMA–he’d insisted that the federal government passed the law for purposes of uniformity across the states–by reading to him the 1996 House Report that clearly states that DOMA sprang from “moral disapproval” of homosexuality. While this rationale was once constitutional, basing discriminatory laws on disapproval toward a particular group has since been prohibited in 2003’s Lawrence v. Texas, the majority opinion for which was authored by–you guessed it–Anthony Kennedy himself. Clement was forced to backpedal and say that while some legislators may have had “improper motives” for DOMA, not all 84 of the Senators who voted for the law bore animus toward gays and lesbians.

Just as the liberal justices tailored their questions toward Kennedy’s views, the conservative Justices, led by Chief Justice John Roberts and Justice Scalia, tried to assuage Kennedy’s concerns by pressing Solicitor General Donald Verrilli, Jr. and Edie Windsor’s lawyer, Roberta Kaplan, on states’ rights. Roberts repeatedly asked both parties if there was truly a federalism problem–a bit of a trap for Verrilli in particular, who as the representative of the United States federal government has no interest in ceding too much power to the states–and became audibly annoyed whenever Kaplan or Verrilli attempted to tie their answers to an equal protection argument. While Roberts and Scalia tried to compel the DOMA challengers to say that federal overreach was not really an issue here, Justice Alito brought up the practical point that a DOMA defeat would mean that gay couples could be treated differently whenever they moved across state lines–and therefore, that the equal protection problem is ultimately unavoidable.

Of course, Justice Alito is spot on here. Regardless of how Anthony Kennedy decides to decide this case, marriage equality is spreading throughout the United States, and the Supreme Court will eventually have to decide what level of judicial protection gays and lesbians deserve. As the swing vote firmly in control of the wheel, however, Kennedy has the luxury of slowing down the train if he wants to, and it looks like he’s going to do just that in the name of federalism. It won’t be as big of a step as many had hoped for, but come June we will likely be one tiny step closer to a more perfect union.