The more inscrutable an important organization is, the more effort that goes into trying to discern why they behave the way they do. The US Supreme Court is a prime example. It almost never gives reasons as to why it accepts or rejects cases for review and has been quite successful in having the justices and their clerks not reveal their internal discussions and workings, at least until their papers are released long after they have retired or died.
The surprising rejection without comment by the justices of the seven appeals that had come before them on the issue of same-sex marriage has had legal observers scratching their heads. On the one hand, since all the cases had overturned bans on same-sex marriage, there was no dispute between different Appeals Courts that needed to be settled, the usual reason for the high court to accept cases that span multiple Appeals Court jurisdictions. On the other hand, they have been known to intervene in cases that did not require an arbiter if they felt the issue was important enough and the nature of the case was such that it required a nationwide resolution and not one that depended on the patchwork of verdicts by the Appeals Courts. And if any case qualified for that, it surely is the issue of same-sex marriage, especially since both sides of these cases asked for review. Usually it is only the losers who do so.
So why did they decide to reject the cases? Speculation has been rampant but I found Scott Michelman’s suggestions as to why four justices could not be found to accept the cases plausible. He splits the nine justices up into three blocs (liberals, swing votes, and conservatives) and tries to understand why each might have had reasons for denying cert.
To a liberal Justice, a supporter of marriage equality, it’s a “bird in the hand” issue. Jumping in now would provide the chance to decide the issue for the entire country at one stroke. But what’s the rush? Public opinion has been moving steadily in the liberal direction on this issue and progress has been rapid. With no reason to expect an about-face, with younger Americans increasingly supportive of marriage equality, with marriage equality starting to win at ballot boxes and in legislatures and not just in the courts, there’s no reason to risk a set-back here if you’re not absolutely certain that you have the Court’s swing voter (or, possibly, one of the two swing voters) with you. And in the meantime, voting to deny review advances your preferred result in five states immediately.
To a swing voter – a Justice undecided about whether there should be a national constitutional rule requiring recognition of same-sex marriage – the calculus is easy. Why decide this now? Why risk a nasty, divided, controversial opinion that could undermine the standing of the Court either by being seen as imposing a controversial policy position on a wide swath of the country that isn’t ready for it, or by placing the Court (and the Justices who sign such an opinion) on the wrong side of history? (Does any Justice want his legacy compared to the Justices who voted for separate but equal in Plessy v. Ferguson or Japanese internment camps in Korematsu v. United States?) Far better to let democracy and public opinion take their course and wait as long as you can.
The decision is hardest for a conservative Justice, for whom no outcome is good. Deny review today, and you’ve just allowed five lower courts to legalize same-sex marriage by judicial fiat… But grant review, and you risk a worse result – that the swing voter (or voters) on the Court will abandon you, as has happened in each of the major gay-rights decisions of the past twenty years – and suddenly you’ll have teed up the decision that makes same-sex marriage the law of the land and achieves a signal victory for what Justice Scalia (dissenting in another gay-rights case) derided as “the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” Your best hope may lie in 2016: if the Republicans take back the White House and can replace a liberal or swing Justice with a solid conservative, then the time will be right to hold that the Constitution does not require states to recognize this novel social experiment. And states that have had same-sex marriage foisted upon them in the meantime will be able to reenact their traditional marriage laws. Not a perfect plan, but perhaps the best hope among unpalatable options.
John Neiman says that the Supreme Court may have decided that this issue is best settled quietly without their involvement.
Perhaps the wisest way for the Court to address this kind of issue really isn’t through some sweeping opinion making lots of fundamental pronouncements about individual dignity and the very nature of human existence. Perhaps the wisest way for the Court to resolve this kind of controversy is through a stack of one-line procedural orders saying, effectively, that the Justices don’t think they need to take these questions on.
But the Court technically still hasn’t decided the question, and we now found ourselves in this exceedingly odd and uncomfortable and even unprecedented situation, where people are ninety-five-percent sure these laws are unconstitutional but nonetheless want the Court to swoop in and expressly say so.
It is not usually the Court’s job to address questions whose answers are so clear that all the lower courts agree on them. The Justices also tend to shy away from sensitive questions of social policy when they can. And although the current Court undoubtedly set the stage for all these lower-court rulings two terms ago in Windsor, there still would be something refreshing – something modest, even – about these nine Justices recognizing that on this particular question, at this particular time, the country doesn’t particularly need their input.
Of course, this is all guesswork. I am not sure to what extent the justices think strategically like this and how much such thinking influences their decision-making. It could have been something much simpler in that there were at least six judges who felt strongly that they should only take up the case if there was a dispute between the Appeals Court to be settled and felt that they should wait to see if one emerges later.