Tomorrow's conference is a private meeting in which the nine justices get together and decide which cases to hear. They do not really argue about the substance of the case. To the extent that legal issues have to be discussed, they are raised to determine if the Court can or should hear the case. So, tomorrow's discussion is not about what the Court thinks about DOMA's or Prop 8's constitutionality; rather, it is about whether the justices should think about DOMA's and Prop 8's constitutionality (after briefing and oral argument).
To get a hearing, you need a minority of 4 justices, though you more often get more. Judges who disagree vehemently about the end result, can still agree to want to hear the case. But, getting a hearing at the Supreme Court is rare. Four votes is hard to come by and according to the Chief Justice's year-end report for 2010, the Court received 8,159 petitions for writ of certiorari (formal request for review) for the 2009-2010 Term. Of these, only 87, or 1.005%, were accepted on appeal.
In some form, DOMA will get a hearing. It has to. Two federal appellate courts have already struck down an Act of Congress. The Supreme Court cannot let DOMA be the law in one part of the country and have it not be the law from Maine to Pennsylvania. But, there are a few options for what the grant will look like. (For now, let's exclude the option that the Court takes none of the cases.).
First, the DOMA cases.
1. The Court combines all the DOMA cases into one. The Supreme Court does this when two or several cases come to it at the same time and ask the same issues. The Court's recent decision declaring President Obama's Affordable Care Act constitutional did just that.
This has a theoretical efficiency benefit, but is not clear to me that it is a real efficiency benefit. If the Court takes all of the DOMA cases and puts them into one, it is likely that Justice Kagan would have to recuse herself because she was President Obama's Solicitor General when some of those cases were going through the pipeline. Despite the intense politics surrounding recusals, the generally collegial Court does not want that to happen if it can avoid it. Plus, combining them does not add any efficiency: the Court can take one and simply hold the others in abeyance until there is a result. It would take the same amount of time. Finally, these cases raises slightly different issues. Most notably, the Second Circuit case (Windsor) is more likely to nudge the Court to say something about levels of scrutiny than the First Circuit case (Gill/Massachusetts).
So, the Court has another option:
2. Take one DOMA case and hold all others pending the result. This is a likely scenario because it would avoid Justice Kagan's recusal. It also could be a strategically important decision: If the Court takes the First Circuit's Gill or Massachusetts, it will deal with a "rational basis with bite" or "rational basis plus" level of scrutiny and have no occasion to say anything about heightened scrutiny. This would be a safe choice if some of the justices don't want to fracture a majority over the issue.
But, then again, the Second Circuit's case (Windsor) would not necessarily require the Court to make a definitive statement about the level of scrutiny even if the Obama Administration and the ACLU are united on that front. The Windsor Court said heightened scrutiny was applicable regardless of the complicated mess other courts had been using. (Thanks to Lambda Legal's Jon Davidson for catching a mistake in an earlier version.). But, while this circuit split on scrutiny certainly encourages the Court to make a clear statement of law for the lower courts to use, we know that the Court — even pro-heightened scrutiny liberal justices — could elect to muddle along if they could not be sure of the votes.
In other words, any DOMA case should allow the Court the opportunity to, at a minimum, clarify what it thinks the level of scrutiny should be for antigay discrimination. Therefore, the choice of which may hinge on Justice Kagan's recusal policy and which case is the most appropriate venue for a strategic compromise.
Next, allow me to complicate the picture by adding the American Foundation for Equal Rights and its Prop 8 case, now titled, Hollingsworth v. Perry. Combining this case with the two options above, we have these three alternatives:
1. Take either all or one of the DOMA cases and take the Prop 8 case. This would be indicative of an ambitious Court that feels it — and the public — are ready to make a decision on marriage. There could be a lot of strategy that goes into this: if a conservative justice feels that his best chance to uphold Prop 8 is to take it now, he might want to do, or he might want to take it and lose now just to encourage a public backlash, assuming the public isn't ready for marriage freedom. A more liberal justices might want a clean, favorable DOMA ruling without a complicating factor. Plus, not taking the Prop 8 case lets the Ninth Circuit's decision stand, which would bring marriage back to California; taking the case would delay marriage.
I don't see this as a likely option for legal reasons. The Court has no substantive reason to take the Prop 8 case: it is specific to one state and could not affect any other pending state marriage law given the unique chronology of marriage in California. Therefore, I can't imagine any of the more moderate justices seeing the Prop 8 case as a good venue for a national decision in favor of the freedom to marry.
2. Take one DOMA case and hold pending the other DOMA cases the Prop 8 case. Or, much less likely, take all the DOMA cases and hold pending the Prop 8 case. This option implies that the Court thinks that its substantive holding on DOMA will affect the underlying decision on Hollingsworth. I have spoken before about how any decision in one gay rights case affects the substantive outcome and interpretation of the next gay rights case, so if the Court does this, it might signal its real willingness to tackle the level of scrutiny question and have it applied to the Prop 8 case and the other DOMA cases in a systematized way.
It's a clever option, but I just don't see it happening. There would be no need to hold pending the Prop 8 case in order to deal with the level of scrutiny in Hollingsworth because Judge Walker's district court decision declaring Prop 8 unconstitutional offers the Court a heightened scrutiny model already. The Court would not need to send Prop 8 back down in order to make the level of scrutiny a part of the case for adequate review. Plus, as I noted above, there is still no substantive reason to even think Hollingsworth merits review at any stage as long as the Ninth Circuit's decision about taking away rights is the analytical framework.
3. Take either all or one of the DOMA cases and deny the Prop 8 case. This is the most likely outcome. As a matter of law, the DOMA cases have to be reviewed and both liberals and conservatives can unite to declare it unconstitutional. Moderate and liberal justices are also likely to think that the country is not quite ready for a substantive decision on a marriage ban, even if it does only focus on California.
The Court following option 3 is probably the best possible outcome for gay rights. The DOMA cases have the potential to be groundbreaking on substantive issues like the dignity of gay couples, equal protection, and levels of scrutiny. Even if the Court continues its muddling standard of something-sorta-like-but-maybe-a-bit-more-than-rational-basis, we will still be having scrutiny arguments, but the Court would still strike down DOMA's odious discrimination. That is itself a victory. And, the final opinion may offer future gay rights attorneys the necessary language for the next win, whether in marriage, employment discrimination, immigration, or surrogacy and adoption.
A notable result of the a favorable decision will be its expressive effect. Once we have a positive decision about the dignity of gay couples, we can include in our political mobilization efforts the lofty rhetoric from a body no less august and honored than the Supreme Court. Homages to marriage, the greatness of gay parents, and the final debunking of quack science will be good for law and politics, especially as we take the next steps to win the freedom to marry in 2013 and 2014 in places like Rhode Island, Delaware, Oregon, and Illinois.
The conference happens tomorrow and though we could know as early as tomorrow afternoon (sometimes, the Court notifies us of its grants immediately), it is more likely that the Court releases its grants on Monday, starting at 9:30 AM. After that, the briefing clock begins. The normal procedure — 45 days for the party seeking reversal of the lower court decision, 30 days for the respondent to respond, and 30 days for the response to the response — may be altered, but it will generally look something like that. This puts briefing done by the middle of March. A hearing will be scheduled for shortly thereafter. And, we should expect a decision by the very end of the term.
But, don't forget, if the Court denies a hearing on the Prop 8 case, marriages in California can begin almost immediately.
Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues.
Follow Ari on Twitter at @ariezrawaldman.