My guess is that the court agreed to hear the California case because the four conservative members — Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts — hoped to overrule the lower court’s decision that the state had to recognize such marriages.
It only takes four votes to put a case on the court’s docket, and they may be hoping that they can win Kennedy’s vote, while discounting the danger that he will go the other way. This would be a sensible call, since it is far from clear that any of the liberal members of the court are now willing to hold that same-sex couples have a right to marry.
Yet Kennedy could foil this strategy by declining, in the end, to review the case. Four votes are all it takes to hear a case, but five votes are sufficient to then dismiss that decision as improvidently granted.
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