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.
It applies an interesting lens to Supreme Court behaviors.
If you are correct in your conjecture, this is a milestone in measuring the social (if not legal) progress of marriage equality as a cultural norm.
It also offers some faint glimmer of hope that at least someone on the “right” side of the Court has the flexibility to change with the times.
Or not. As you say, this is all speculation.
Senator Patrick Leahy On SCOTUS Decision Not To Consider Pending Cases On Same-Sex Marriage
October 6, 2014
[The Supreme Court on Monday decided not to hear any of the five pending cases on same-sex marriage. The Court’s decision effectively upholds the lower court decisions that struck down same-sex marriage bans in Indiana, Wisconsin, Utah, Virginia and Oklahoma. Couples in those states can now marry. Furthermore, several additional states are bound by these lower court rulings and same-sex couples in Wyoming, Colorado, Kansas, West Virginia, North Carolina and South Carolina will also be able to marry.]
“The Supreme Court’s decision today is another important step toward fairness for all Americans who deserve the right to marry who they love. Our country has made great strides on this important civil rights issue, and today marks another critical milestone in the ongoing march toward equality. Vermont was one of the first states in the nation to fully recognize same-sex marriage. Vermonters understand the importance of marriage equality, and the right to have those commitments recognized by their government.”
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There was a report on National Propaganda Radio yesterday in which a recording of a Conservative Inhumane Activist said that there are is one other circuit court (was it the 6th?) that hasn’t rendered it’s decision, but seems likely to side with the inhumane, anti-Constitutionalists. His hope was that the SCOTUS was waiting this circuit’s final decision (sometime next year and therefore next SCOTUS session) before taking up a Final Verdict in ‘gay marriage’. The Conservatives pray for thousands of marriages to be declared null and void by the SCOTUS, because their ‘god’ requires them to be inhumane monsters.
The Sixth Circuit (Michigan, Ohio, Kentucky, Tennessee) hasn’t ruled and is thought to be hostile. On the other hand, the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington) ruled in favor of marriage Tuesday.
I haven’t really sussed out the politics of the Court here. Naturally it would be the conservatives who would have been interested in granting cert for these cases where the pro-marriage forces won (and now that would also apply to the Ninth Circuit). If the Sixth Circuit goes against marriage then the “liberals” on the Court would be more likely to grant cert to reverse that one, but they could have done that Monday if they thought they had the votes to hold marriage bans unconstitutional.
Was it Roland Hedley from Doonesbury who would conclude his trite commentaries with “One thing is certain: life goes on”?