Three Ways That Today’s Supreme Court Marriage Vote Sends a Clear Signal to Lower Courts

By Steve Klepper (Twitter: @MDAppeal)

On Twitter today, I’ve seen comments to the effect that we shouldn’t read much into today’s Supreme Court vote denying review of the pending marriage equality cases. I disagree. For three reasons, we can tell a whole lot from today’s vote.

First, if any justice wanted to clarify that the denial of certiorari was not a message to the lower courts, it would have been easy to do so. Any one justice could have filed such an opinion “respecting the denial of the petition for a writ of certiorari,” as Chief Justice Roberts and Justice Alito have done in other recent cases.

Second, many have said that today’s ruling was unremarkable, because there is no circuit split so far. But here’s where the timing comes into play. Nothing required the Court to act today, rather than wait to see whether a contrary ruling comes from the Fifth Circuit, the Sixth Circuit, or the Texas Supreme Court, all of which have pending cases. John Ellwood has made a national name for himself counting how many times the Court relists cases for future conferences. The Sixth Circuit case, argued in August, appeared close, with the swing vote being Justice Scalia’s former law clerk, Judge Jeffrey Sutton. If Justice Scalia wanted time to give time for a potential circuit split to develop, he could have unilaterally postponed a final ruling on the pending petitions by informing his colleagues that he was authoring a decision dissenting from the denial of certiorari, and then taking his time writing that dissent.

Third, there is ample precedent for the Supreme Court to rule on this question by denying review. The Court’s only prior ruling on the constitutionality on state bans was Baker v. Nelson (1972), which a dismissed a challenge “for want of a substantial federal question.” Today’s ruling is the mirror image of Baker.

On the first Monday in October, the Supreme Court has issued what is likely the most significant ruling of the term.

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4 responses to “Three Ways That Today’s Supreme Court Marriage Vote Sends a Clear Signal to Lower Courts”

  1. Michael Wein says :

    I somewhat disagree Steve, but perhaps just on what it means to speak on precedent from a “legal” perspective. See Maryland v. Baltimore Radio Show, infra. While most cases, very little can be officially construed from a denial of Cert, I agree that there are a number of signals in this particular case from the multiple denials of Cert, insofar, as there’s actually been a Cert grant before on whether gay marriages should be permitted to proceed, so the S.C. obviously was aware of the impact of the Denials of Certiorari for this particular issue.

    “It becomes relevant here to note that failure to record a dissent from a denial of a petition for writ of certiorari in no wise implies that only the member of the Court who notes his dissent thought the petition should be granted.[…] all that a denial of a petition for certiorari means is that fewer than four members of the Court thought it should be granted . . .” Maryland v. Baltimore Radio Show, 338 U.S. 912, 918 (1950).(J. Frankfurter)

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