Roberta Kaplan, attorney for key plaintiff Edith Windsor, made a bold statement in favor of gay rights, saying a "sea change" was happening in the country in favor of same-sex marriage. Such sweeping rhetoric from counsel is usually an invitation to a verbal smackdown from the justices. They like specifics, not speeches. Scalia had his chance for a tailor-made "moment" of his own but did not pounce.
"Why are you so confident in that judgment?" he asked mildly. "How many states permit gay couples to marry?" When told just nine, all Scalia could retort was, "So there has been this sea change between now and 1996."
The conservative justices were not exactly sitting on their hands, but aside from Justice Clarence Thomas, who never speaks at argument, their energy was noticeably absent.
4. So is DOMA doomed?
It's an almost reflexive attitude among many legal and political experts to downplay the influence Justice Anthony Kennedy possesses as the so-called swing vote among the divided conservative-liberal bench. Giving any one person in Washington that much credit just doesn't seem right, in the view of some. He certainly has done everything in his power to dismiss it, calling his ability to make or break a hot-button appeal a "myth."
But it was hard to ignore remarks Kennedy made about an hour into the argument, which may give cheer to gay rights supporters.
He pointed out there are about 1100 various federal provisions that legally married same-sex couples cannot use because of DOMA -- everything from taxes to family medical leave.
"Which in our society means that the federal government is intertwined with the citizens' day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody," he said.
They were brief comments, delivered in the typical droll manner that is the low-key justice. He never dominates arguments, but when he talks, ears perk up. Even the justices on the bench were looking his way, absorbing the impact of what Kennedy was trying to convey.
Any real power would be felt behind the red velvet curtains of the courtroom, where all important opinions are written. That is where the court derives its power and authority and where the views of this 76-year-old Californian must be respected.
5. Waiting for the final act
So what's next? In short, the public waits while the justices write.
The members will meet privately later this week in a special conference room -- just the nine of them with no clerks, staff or reporters allowed.
There, the court is expected to vote -- at least preliminarily -- on the two same-sex marriage appeals. Opinion writing will commence, endless drafts will be exchanged among chambers and suggestions for changes will come flooding.
Bit by bit, the makings of legal opinion take shape. Justices are free to change their mind midstream -- and they do. Witness Roberts last year during the challenge to the health care reform law championed by Obama. Government sources confirm Roberts switched sides several weeks after an initial vote and was the controlling vote to uphold Obamacare.
The internal drama will play out over the next three months, unseen by the public. The court's high profile will re-emerge when their ruling is issued, but the guessing game has already begun.