Tuesday, October 7, 2014

SCOTUS declines to hear gay marriage cases - #2

So what does it probably mean that SCOTUS declined to hear any of these cases?  I'm not a Supreme Court expert (where is Nina Totenburg when we need her?);  but here are some possibilities that occur to me.

1.  When there are multiple cases on the same issue, SCOTUS usually steps in when there are conflicting decisions on that issue by different Circuit Courts of Appeal.   That makes it practically mandatory that SCOTUS resolve such a conflict affecting different states differently.   But that is not the case here;   every one of the cases have been favorable to marriage equality so far.  There is no discrepancy for SCOTUS to have to resolve.  In Ginsburg's recent interview, she hinted that this is what would happen.

There is one case, I think in Louisiana maybe, where a lower court federal judge has upheld a ban;  but it has not yet gone to its Circuit Court of Appeal.

2.  Considering the makeup of the court and what it takes to hear a case, the answer may lie here.   It takes four votes (of the nine) to accept a case to be heard.   This could simply mean that there were not four votes to accept any of the cases.  That would mean that at least two of the conservative five did not want to accept the cases.

3.  Or it could mean that one of the justices -- perhaps Kennedy -- was willing to let the bans be overturned but did not want to make it mandatory in all 50 states.  Thus, simply refusing to hear these cases preserves it as a state prerogative to decide.  But it would take more than just one conservative, because in only takes four to accept a case.

4.  It's possible that the liberals might have feared that Kennedy would side with the conservatives and uphold the bans -- which would be the worst possible outcome.  Liberals might have voted against hearing a case to prevent that.

5.  As I think about it more, I can imagine something like this:
     Sotomayor and Kagan want to make a sweeping decision to overturn the bans.   Scalia and Thomas and maybe Alito want to reverse the appeals court decisions and reinstate the bans.  Ginsburg and perhaps Roberts and Breyer and Kennedy want to let it be a state decision.   There would not have been four votes to accept a case in this scenario.

Despite her very liberal stance, Ginsburg has expressed concerns that Roe v Wade was prematurely decided, and she might feel the same about this.

From my perspective, the best outcome would have been for them to accept the Virginia case (because it's the best and most thoroughly argued) and make a sweeping decision mandating marriage equality in all 50 states.

The second best outcome is exactly what happened, even though it was unexpected.   We have the freedom to marry now in 30 states and D.C.    What state is going to be foolish enough to mount a Supreme Court defense with these odds against them?   They just want it to go away now.

There are two other appellate courts that may issue decisions any day affecting six more states:   the 6th with cases in Kentucky, Michigan, Ohio, Tennessee;  and the 9th with cases in Idaho, and Nevada.   It's possible that the conservative-leaning 6th might decide the other way;  but the 9th located in San Francisco is likely to overturn the bans.

Ralph

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