Today, the Supreme Court is meeting in private to decide what cases on its docket it will hear.
Among the many cases on the docket are a handful of marriage equality cases out of Tennessee, Michigan, Ohio, Kentucky, and Louisiana. The first four of those states are under the jurisdiction of the Sixth Circuit, which, in November, became the first federal appellate court in the post-Windsor era to uphold the constitutionality of state bans on the freedom to marry. As I have argued, that opinion was not just wrong on the law, it was an abdication of the judicial role. The case out of Louisiana is there because a district court judge upheld that state's ban in a decision that doesn't even pass the laugh test. Both parties to the case decided to skip over an appellate court decision and go right to the Supreme Court.
The requests before it are called "petitions for a writ of certiorari," or, literally, a request for an order from a higher court (SCOTUS) to review a lower court (intermediate appellate court) decision. The petitions look like, sound like, and are sometimes as long as regular substantive briefs, and they make many of the substantive arguments the parties will make at trial. A minimum of 4 justices are required to grant a writ. Granting the writ does not say anything about how the Court will decide: a justice can vote to hear a case because he or she agrees or disagrees with the decision below. Also, bear in mind that there are many cases on the Court's docket; the justices do not always get to all of them. If we don't hear immediately about an order granting a hearing, do not fret. It may mean that there were too many cases to consider in one meeting.
Notably, the Court rarely takes cases. In 2012, there were 8,806 cases on its docket. It granted review in 93 of them. That comes out to almost exactly 1% of cases.
Many considerations go into a decision to hear a case. Circuit splits and confusion in the law weigh heavily on the Court, but any law professor and practitioner will tell you that the Supreme Court does not always do a good job clarifying the law. The Court's recent decision in ABC v. Aereo, which concerned the online streaming television company, is a good example of a decision that did not really clarify much of anything. Some scholars think Windsor falls into that category.
In any event, the Supreme Court takes cases when it wants to and it rarely, if ever, explains its reasoning for a grant or a denial. Court watchers and insiders have written books about the process. But none of them are in the room; only the justices are there. The bottom line is the Supreme Court has almost limitless leeway in determining its docket.
CONTINUED, AFTER THE JUMP...