TOM GOLDSTEIN ON TODAY’S PROP 8 ORAL ARGUMENT. “But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.” The audio and transcript are not yet available. I want to form my own opinion. I’m not surprised that Kennedy performs public agonizing over the judicial role and seems entirely different from the Ginsburg-Breyer-Sotomayor-Kagan set. That doesn’t mean he won’t join them in the end.