Cert Denied Is Justice Delayed: SCOTUS Kremlinology In The SSM Cases

by Michael Dorf

Yesterday's cert denials in the same-sex marriage cases surprised most observers, including me. The likely impact of the cert denials was pretty well understood almost immediately. As I explained a couple of weeks ago, given the practical impact for same-sex couples who marry in the states in the circuits where the stays are lifted and where additional lawsuits or actions by elected officials enable SSM, the cert denials amount to "a very strong signal that the Court's ultimate decision on SSM is a foregone conclusion in favor of invalidating state bans, because only by invalidating SSM bans would the Court avoid the uncertainty that would follow if multiple states had to deal with interim same-sex marriages that became retroactively illegal."

The harder question is what were the internal dynamics of the Court that led to the cert denials. I don't have a good answer, but I do have some thoughts about the various factors that were in play. Herewith, some rank speculation.

1) The Perry Puzzle. In June 2013, four Justices--Kennedy, Thomas, Alito, and Sotomayor--were prepared to reach the merits of a challenge to a state same-sex marriage ban in Hollingsworth v. Perry. It only takes four to grant cert, so at least one of these four must have jumped ship. Why?

The seemingly obvious answer is the difference in procedural posture. The four Justices just noted voted that there was proper Article III standing after the Court had initially granted cert and heard oral argument. These four might have thought that standing was clear in Perry but that they shouldn't use their discretion to grant cert in one of the new cases. But this answer makes little sense because at least four Justices must have voted to grant cert in Perry too, so the Court's hand wasn't forced there either.

Maybe one or more of the four or more Justices who voted to grant cert in Perry thought that a California-only rationale was available for invalidating Prop 8, so that the nationwide issue would not be before the Court. But given how skeptical the Justices were of such rationales at oral argument in Perry, this seems unlikely.

2) That leads me to think that at least one conservative who voted to grant in Perry in the hope of ruling against a right to SSM in 2013 voted to deny in all of the SSM cases yesterday in the hope of preventing a majority of the Court from ruling in favor of such a right now. One version of this theory was spelled out by Garrett Epps yesterday in his column for The Atlantic:
The four dissenters in United States v. Windsor—the Defense of Marriage Act case—may have looked around the conference table last week and realized they would never get five votes to overturn the lower courts; that is, that Justice Anthony Kennedy was committed to taking his Windsor opinion to its fullest extent. Such an opinion might not only affirm same-sex marriage; it might hold, as some lower courts have held, that sexual orientation is a “heightened scrutiny” classification, like race or sex. All laws that discriminate against gays and lesbians would be in danger then. Chief Justice John Roberts and his allies may hope that every circuit will come to the same decision, so that gay marriage will become the law without a broad Kennedy opinion upholding the rights of gays in other areas.
I think the general outline here makes sense but that the specific fear that Justice Kennedy (and four other Justices) would recognize sexual orientation as a suspect (or "semi-suspect") classification would have been unfounded. For two decades now, Justice Kennedy has been writing opinions in both substantive due process and equal protection cases that simply bypass the conventional doctrinal categories. There is little reason to think he would have changed course in a SSM case. Instead, I think that his opinion would have said--and in the event that the Court eventually grants a SSM case, will say--that state laws denying a right to SSM deny dignity and/or are rooted in impermissible animus.

3) Nonetheless, I do think that from the conservative perspective, the vote to deny was "defensive," i.e., the conservatives did not want to give the majority a chance to make what the conservatives would regard as bad law. True, by denying cert they essentially guaranteed that SSM would become the law of the land, but maybe they thought it better for that to happen without any official merits ruling by the Supreme Court. Even a decision rooted in the "animus" theory might be jurisgenerative in a way they would dislike.

4) The bigger mystery is why the liberals (including, for these purposes, Justice Kennedy) voted to deny. Depending on how quickly things move in the Circuits that have not yet ruled, cert denied is justice delayed, and so Justices who think there is a right to SSM may be delaying the ability of same-sex couples in slow-moving circuits to marry by up to a year. If one of these circuits holds that there is no right to SSM, but takes until February or later to do so, then the Court would not hear oral argument on that case until next year. At the same time, even if the appeals courts all come into line, the liberals lose something, namely the ability to enshrine a right to SSM in the US Reports: the conservatives' gain is the liberals' loss.

5) I have two possible explanations for the vote to deny of at least two of Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. First, it's possible that two or more of them thought that a ruling for a right to SSM would be at least somewhat controversial and that by ducking the issue for a year or potentially forever, they would avoid giving conservative critics of the Court additional fodder. Even another year's delay will make the eventual coup de grace easier to swallow, if it comes at all.

Second, perhaps the denial was a kind of deal. The liberals get what they really want: nationwide SSM is inevitable. The conservatives avoid having to write dissents that will make them look like bigots to their grandchildren. The Court as a whole gets a relatively peaceful Term in which hot-button cultural issues are not especially prominent. I'm not suggesting that this "deal" was explicit, but it's relatively easy to imagine how it would take shape without anybody calling it a deal.