by Michael Dorf
Last week, Justice Thomas, joined by Justice Scalia, issued a brief statement respecting the denial of the stay application in Maricopa County v. Lopez-Valenzuela. The statement made waves because it criticized the Court's failure (thus far) to grant certiorari in the same-sex marriage (SSM) cases, even though Maricopa County was not a SSM case. Together with the dissent by the same duo from the denial of the stay application in Moser v. Marie--which is a SSM case--Maricopa County provides a glimpse into the generally opaque cert process w/r/t SSM.
It appears that seven Justices have been voting to deny cert in these cases. Presumably at least five of those Justices--and presumably they are Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan--have been voting to deny because they are content with the lower court rulings invalidating state SSM bans. More interestingly, the voting pattern suggests that CJ Roberts and Justice Alito have either had a change of heart re SSM since Windsor or (more likely) have been voting to deny cert because they know their side will lose anyway and would prefer to avoid the issue. Of course, we'll likely get a fuller picture soon enough, as the Court will almost certainly grant cert in the Sixth Circuit case. The only real mystery remaining there is whether they will drag it out so that the case doesn't reach them until next Term.
Looking beyond the implications for SSM, I want to focus a bit on some curious claims in Justice Thomas's Maricopa County statement. I should say at the outset that I do so in the spirit of genuine curiosity rather than any sort of ideological ax to grind, because I agree with his bottom line that the Court should have granted cert in one of the SSM cases in October and having failed to do so, should take the Sixth Circuit case (or some other case) ASAP.
Justice Thomas makes the following claims in his brief Maricopa County statement:
1) The Court has a strong presumption in favor of granting certiorari when a lower court invalidates a federal statute;
2) "States deserve no less consideration";
3) The SCOTUS "often" grants cert to "review decisions striking down state laws, even in the absence of a disagreement among the lower courts;"
4) "for reasons that escape" Justice Thomas, the Court has "not done so with any consistency, especially" in the SSM cases.
I agree with proposition 1), but the other three are puzzling. I'll consider them in turn.
2) Justice Thomas here asserts that a lower court decision striking down a state law is no less worthy of cert than one striking down a federal law. But this seems pretty clearly wrong.
The invalidation of a federal law either affects the whole country or, if it is confined to a particular circuit or state, necessarily creates disuniformity in federal law, as the law would be valid in some places and invalid in others. By contrast, the invalidation of a state law only affects that state and, absent a division of authority among the lower courts on the reasoning of the opinion, creates no disuniformity. So, other things being equal, the invalidation of a federal law will have a broader impact and will implicate uniformity--which, ever since Martin v. Hunter's Lessee, has been recognized as a core concern of the Court's appellate review.
Moreover, because there are fifty states but only one federal government, there will typically be many more lower court cases in which a state law is held invalid than cases in which a federal law is held invalid. If the Court were to grant the same presumption of review to such state cases as it grants to federal cases, that would crowd the docket. However, I hesitate to label this a large concern without seeing actual numbers (more about that in point 3), given that the Court's docket is considerably smaller today than it was a generation ago.
One might also think that it's more important to review laws striking down federal statutes than those striking down state statutes, perhaps because one thinks that states are more likely than Congress to enact laws violating the Constitution, or perhaps for some other reasons. Such a judgment appears to have been implicit in Section 25 of the Judiciary Act of 1789, which afforded review in the SCOTUS when a federal statute was held invalid, while only allowing review (by writ of error) of cases involving state law when a state law challenged as unconstitutional was upheld by the state courts. To be sure, Congress changed this asymmetrical review scheme 100 years ago, and for a substantial period thereafter lower federal court cases invalidating a state statute fell within the Court's mandatory appellate jurisdiction--although the Court frequently manipulated that jurisdiction with summary affirmances. In any event, a Justice could take the view that the policy judgments that were made by the first Congress as an on/off switch for SCOTUS review are still (or once again) valid as a factor to be given some weight with respect to the discretionary decision whether to grant cert.
3) It's not clear what Justice Thomas means when he says that the Court "often" grants cert in cases in which a lower court struck down a state law. If he means "sometimes," well that's clearly right. But saying "sometimes" would render senseless his further claim (claim 4)--that the Court has departed from some consistent pattern in the SSM cases. If the Court merely sometimes grants cert in splitless cases where a state statute has been invalidated then of course it also sometimes doesn't grant cert in such cases. The only way one could say that the Court has acted without a consistency it has ostensibly acted with before is if "often" means something like "nearly always" or at least "usually."
But I don't think it's true that the Court nearly always or even usually grants cert in cases in which a state complains that a lower court has invalidated a state statute. I looked in the empirical literature but couldn't find any definitive study of this question. The studies that have been done do indicate that such cases are more likely to be granted than a random case: State as petitioner increases the likelihood of a grant, and most cases in which a state law has been struck down will involve the state as petitioner. (Some will arise in private litigation, however, or will involve a local government or local government official as petitioner.) Still, I very much doubt that a comprehensive study would find that the Court grants review in most cases in which a state law has been struck down by a lower court, even in the absence of a split. Certainly Justice Thomas doesn't cite any such study. Indeed, I would guess that he shares my hunch about the numbers, and that this fact may explain why he fudges his statement by saying "often" (even though "often" as "sometimes" is not enough to make his claim 4 work).
4) That brings us to claim 4. As I've said before, there were good reasons why the Court should have granted cert in the SSM cases when the Term opened. The only publicly stated reason why it did not was Justice Ginsburg's statement that it's customary for the Court to wait for a split, and that should not have been sufficient, given the importance of the issue and the one-way ratchet effect of not staying the lower court judgments, thereby permitting thousands of marriages to go forward. So maybe the generous way to read Justice Thomas's statement is as a reminder that the Court does indeed sometimes grant cert when a state law has been held unconstitutional, even absent a split. In this view, Justice Thomas's claims are overstated, but the basic point is sound as applied here.
Finally, I'll add three postscripts:
First, Justice Thomas ends his Maricopa County statement with the following proclamation: "At the very least, we owe the people of Arizona the respect of our review before we let stand a decision facially invalidating a state constitutional amendment." He can't possibly mean what he appears to say here. Suppose that a state constitutional amendment blatantly violated some federal constitutional rule--let's say a state constitutional amendment that forbade women from voting in state elections or that outlawed the practice of Islam. Surely a lower federal court could invalidate such a provision and the SCOTUS would not "owe" the state a pointless cert grant followed by a unanimous decision affirming the invalidation in order to let the lower court decision stand.
Second, there is anecdotal evidence (collected in the leading Supreme Court practice book) suggesting that Justice Thomas is right even if "often" means "usually," but for the same reasons that I am skeptical of Justice Thomas's claim, I'm skeptical of this anecdotal evidence. I would be very grateful if any reader can point me to a statistical study that looks at the relative percentages of cert grants in cases in which a state law is invalidated and those in which a federal one is. It would be interesting to see whether my hunch is right or wrong. One further reason to think I might be wrong is that if the Court in fact treats state law invalidation as less cert-worthy than federal law invalidation, that would affect the likelihood that losing parties would seek cert in cases in which the lower federal courts invalidated state laws; lowering the denominator would raise the rate of grants. If this were happening, that would mean I am wrong on my literal view but right in spirit. In any event, it would be great to see actual numbers.
Third, I am grateful to Professors Will Baude, T-J Chiang and Kevin Walsh for helping me formulate some of the foregoing in a private online forum--which is not to say that they are likely to agree with everything I've said here.