UPDATE: Tuesday the Ninth Circuit also ruled in favor of marriage equality.
Ted Cruz's reaction to the Supreme Court's decision not to take a case or make a decision: “Judicial activism at its worst.”
We are used to the Supreme Court making decisions and releasing an explanation of the effect and reasoning of those decisions, so yesterday's decision rejecting challenges to marriage equality decisions is a bit opaque. I thought it might be useful to give a little review of what happened and what I think it might mean.
First off, although we are used to talking about “appealing” a case to the Supreme Court, virtually none of the cases the Court decides come from an appeal. They come from a petition for a writ of certiorari, a procedure whereby the losing party in a lower court asks the Court to review the lower court's decision. The Supreme Court has complete control over whether to accept the case, known as “granting cert”; every year they accept a tiny fraction of the cases that come to them, and they have almost complete control of what cases they will take.
You've heard discussion of a split in the circuits. One of the reasons that the Court might grant certiorari is if the courts of appeals in different circuits have come to different conclusions about the same issue, particularly it is of constitutional dimension. Again, this is not a rule that they must take these cases, just a prudential principle for cases in which they might take them.
The other thing that you might not know is that although it generally takes five votes (out of nine) to win a case at the Supreme Court (and how you get to five can be tricky), it only takes the votes of four justices to grant certiorari.
In this case, advocates on both sides were urging the Court to grant cert, but they decided not to do that. This obviously leads to great celebration among marriage equality advocates not only in the states the cases came from, but in the other states in those circuits, because the decisions of those circuit courts will be binding on the federal and state courts in all of those states. (This is how we get to thirty marriage equality states after this decision is implemented.) On the other hand, people who were hoping for a definitive statement from the Supremes that marriage equality is required by the Constitution were disappointed.
It's rare for a justice to write publicly about why he or she voted to grant or deny cert, so we don't really know the reasons they did what they did. You can find law review articles and cases discussing the meaning and precedential authority of a denial of cert, but that's not my purpose here. If I were to speculate, however (which I am), I would guess that the extreme conservatives couldn't muster four votes to accept the cases as an opportunity to reverse them and stop the seemingly unstoppable wave of marriage equality.
If I'm right this isn't the same as a clear statement from the Court, but it's suggestive of what the future might hold.
Color me more than a little optimistic.