At least insofar as the oral argument is revealing, the puzzle of Hollingsworth is how the Court will “get to five” – how five members of the Court will agree on the judgment.

This is a recurring dilemma when there is a threshold question in the case – here, the petitioners’ standing to defend Proposition 8.  The problem gets even bigger when you add in the possibility that one or more members of the Court do not want to decide the case at all – here, Justice Kennedy’s suggestion that the writ of certiorari should be dismissed.

In a lot of cases, these issues don’t affect the outcome of the case, so the Court does not have to really confront them.  If one Justice thinks a party lacks standing and another Justice won’t decide the case, then five of the remaining Justices may still agree on an outcome.  The other two are irrelevant.

But when the Court is closely divided, things can get messy.  Hollingsworth may be such a case. 

There is only one question on which it seemed five Justices might agree:  the judgment should be vacated because the petitioners lack standing.  The Chief Justice and the four more liberal members of the Court indicated their sympathy for that position.  If they vote that way, the Ninth Circuit’s decision striking down Proposition 8 will be vacated – wiped from the books – but U.S. District Judge Vaughn Walker’s judgment invalidating Proposition 8 would remain unaffected.  That district court ruling would apply to the parties in the case.  There would be additional litigation about whether and how Proposition 8 would be applied elsewhere.  If Proposition 8 were invalidated in those cases, an appeal likely could be taken in a case in which a state or local official wanted to enforce it.  So the issue would go back to the Ninth Circuit, and potentially to the Supreme Court in a few years.

But assuming that the Court does not vote to vacate the judgment for lack of standing, and therefore reaches the merits, what then?  There seem to be four votes to reverse and uphold Proposition 8 (the Court’s conservatives) and four to affirm (the Court’s more liberal members).  Justice Kennedy is the ninth vote, and he suggested that he would prefer the Court not decide the case.

If Justice Kennedy did decline to vote on the merits, then the Ninth Circuit’s judgment would be affirmed.  Either the judgment would formally be affirmed by an equally divided court, or he would nominally cast a vote to “affirm” that would produce the same result – see, for example, Justice Stevens’s 1983 opinion concurring in the judgment in Connecticut v. Johnson.

But whether a Justice can decline to decide a case on the ground that it should be dismissed, when no development has occurred since certiorari has been granted, is a difficult and debated question in the Court.  See, e.g., Richard L. Revesz & Pamela S. Karlan, Nonmajority Rules and the Supreme Court, 136 U. Pa. L. Rev. 1067 (1987-1998), and Michael E. Solimine & Rafael Gely, The Supreme Court and the DIG:  An Empirical and Institutional Analysis, 2005 Wis. L. Rev. 1421 (2005).  (Ironically, one of the most relevant authorities is an early predecessor to gay rights litigation, New York v. Uplinger.)  If Justices were perfectly free to do so, then in theory the Court’s “rule of four” – that four members of the Court can vote to grant certiorari – would be in jeopardy:  five Justices who did not grant certiorari could simply refuse to decide the case.  On the other hand, a Justice could reserve the power not to decide the merits for extraordinary cases.

I may return to that question in a later post.  But it seems to me that it may remain an academic question here.

That is so because the unusual circumstances of the Term give a Justice who wants to avoid deciding Hollingsworth additional options, because an intervening development is coming:  the Court is going to address laws discriminating against same-sex couples in the pending Windsor challenge to DOMA.  That could be a basis for declining to decide Hollingsworth.  Perhaps more likely, any member of the Court could vote to vacate and remand the judgment in Hollingsworth for further consideration in light of Windsor.  In that scenario, five members of the Court could agree to vacate the Ninth Circuit’s decision on alternative grounds (some concluding that the petitioners lacked standing and others concluding that the court of appeals should rethink its decision in light of whatever the Court holds in Windsor).

That ruling would leave the Ninth Circuit in a tough spot.  Its authority to go forward in the case might be unclear.  And there would remain the prospect that four members of the Court would want to grant review in the same case after the Ninth Circuit issued its decision.  But the Court would have avoided stepping into the issue for the time being.

 

Posted in Hollingsworth v. Perry, Featured, Same-Sex Marriage

Recommended Citation: Tom Goldstein, Reaching a judgment, SCOTUSblog (Mar. 26, 2013, 3:41 PM), http://www.scotusblog.com/2013/03/reaching-a-judgment/