Symposium: Why the Nine couldn’t count to four

Scott Michelman is an attorney at Public Citizen Litigation Group.

All the parties in the same-sex marriage cases asked the Court to weigh in. How to explain the Justices’ individual decisions not to.

When you win a major case in a federal appeals court, usually the last thing you want is the Supreme Court coming along and mucking it up. But same-sex marriage is different.

Rarely have all parties on all sides of an issue been in such agreement that the Supreme Court ought to hear an issue as have the parties in the cases challenging same-sex marriage bans in Indiana, Oklahoma, Utah, Virginia, and Wisconsin. “This case presents a constitutional question of pressing national importance,” argued the Tulsa County court clerk, urging the Court to review the decision striking down Oklahoma’s ban on same-sex marriage. Her opponents, the thus-far successful challengers to the ban, noted “the extraordinarily pressing need to resolve this controversy as expeditiously as possible.” Briefs in the other cases sounded similar themes. Everyone wanted the Supreme Court to rule.

So why did the Supreme Court – in what veteran court-watchers are viewing as a major surprise – decide not to review the same-sex marriage cases?

One could look to standard Court practice and say (as Justice Ginsburg mused last month) that there was no rush for Supreme Court review until there’s a “circuit split” – that is, different rulings by the federal courts of appeals on the same legal question. But on an issue of such great national concern, that rule doesn’t always apply. For instance, two years ago, the Court stepped in to consider the validity of the federal Defense of Marriage Act (DOMA) even though there was no circuit split. And taking a “wait and see” approach has real and difficult-to-reverse consequences: denying review in these cases means the issue is conclusively resolved in five states, where the lower courts ruled for the challengers to the marriage bans.

So same-sex marriage is now permitted in Indiana, Oklahoma, Utah, Virginia and Wisconsin. If the Supreme Court later rules that states are not required to recognize same-sex marriages, these five states would have to take additional action to reenact the bans that federal courts have struck down. In the meantime, same-sex Indianans, Oklahomans, Utahns, Virginians, and Wisconsinites will have gotten married. The horse is leaving the barn. This is going to be hard to undo.

Meanwhile, same-sex couples in states where there is no decision yet have to wait – possibly for years still – while employee benefits are denied, babies are born without both mothers on the birth certificate, and visiting a partner in the hospital remains an obstacle course.

So why is the Roberts Court, not normally shy in jumping into controversial issues such as affirmative action or campaign finance law, ducking this one?

The answer may lie in the incentives facing the individual Justices rather than the approach of the Court as a whole. When you look at the choices available from the three different perspectives on this issue – liberals, swing votes, and conservatives – it becomes much easier to see why there weren’t the four votes required (out of the nine Justices) to hear this issue now. With no camp assured of victory if the court decided to hear the cases, the uncertainty may hold the key to the Justices’ thinking.

To a liberal Justice, a supporter of marriage equality, it’s a “bird in the hand” issue. Jumping in now would provide the chance to decide the issue for the entire country at one stroke. But what’s the rush? Public opinion has been moving steadily in the liberal direction on this issue and progress has been rapid. With no reason to expect an about-face, with younger Americans increasingly supportive of marriage equality, with marriage equality starting to win at ballot boxes and in legislatures and not just in the courts, there’s no reason to risk a set-back here if you’re not absolutely certain that you have the Court’s swing voter (or, possibly, one of the two swing voters) with you. And in the meantime, voting to deny review advances your preferred result in five states immediately.

To a swing voter – a Justice undecided about whether there should be a national constitutional rule requiring recognition of same-sex marriage – the calculus is easy. Why decide this now? Why risk a nasty, divided, controversial opinion that could undermine the standing of the Court either by being seen as imposing a controversial policy position on a wide swath of the country that isn’t ready for it, or by placing the Court (and the Justices who sign such an opinion) on the wrong side of history? (Does any Justice want his legacy compared to the Justices who voted for separate but equal in Plessy v. Ferguson or Japanese internment camps in Korematsu v. United States?) Far better to let democracy and public opinion take their course and wait as long as you can.

The decision is hardest for a conservative Justice, for whom no outcome is good. Deny review today, and you’ve just allowed five lower courts to legalize same-sex marriage by judicial fiat. You have, in the words of Justice Scalia, dissenting from the Supreme Court’s decision last year striking down DOMA, “cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat” through the democratic process. But grant review, and you risk a worse result – that the swing voter (or voters) on the Court will abandon you, as has happened in each of the major gay-rights decisions of the past twenty years – and suddenly you’ll have teed up the decision that makes same-sex marriage the law of the land and achieves a signal victory for what Justice Scalia (dissenting in another gay-rights case) derided as “the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” Your best hope may lie in 2016: if the Republicans take back the White House and can replace a liberal or swing Justice with a solid conservative, then the time will be right to hold that the Constitution does not require states to recognize this novel social experiment. And states that have had same-sex marriage foisted upon them in the meantime will be able to reenact their traditional marriage laws. Not a perfect plan, but perhaps the best hope among unpalatable options.

Viewed as an institution, the Court had every reason to take up these cases now and address a pressing social issue that affects the lives of countless individuals. But viewed as individuals, Justices of every stripe had decent strategic reasons to let the issue lie. Maybe yesterday’s decision should not have come as such a surprise, after all.

[Disclosure: The author is a board member of the ACLU of Virginia, which represents plaintiffs who prevailed in their challenge to Virginia’s ban on same-sex marriage in one of the cases the Supreme Court declined to review today. The views expressed herein are the author’s own and not those of the ACLU or of the author’s employer Public Citizen Litigation Group.]