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…
Granting or denying a hearing is, at times, much more a strategic decision than a substantive one. According to several biographies of former Supreme Court justices, including ones on master tacticians like Justice William J. Brennan, Chief Justice Earl Warren, and Justice Felix Frankfurter, justices have reasons to decline to hear cases they really want to hear if they are worried they can't get a majority on their side. The strategy to wait is based, of course, on the expectation that the make up of the Court would change in your favor, which does not always happen. Felix Frankfurter found himself on both sides of that coin at different points in his tenure.
However, there is reason to believe that seven justices would be willing to grant a hearing in the marriage equality cases.
Justice Breyer is a bit of a wild card on the Court, a consumate moderate if there ever was one. His jurisprudence has made clear that he finds the kind of discrimination at issue in marriage equality cases more than distasteful, and he dislikes confusion in the law and circuit splits.
Those four justices are enough.
Justice Kennedy, who is a staunch ally of gay equality, might see this case as the culmination of a long career. Despite a very conservative voting record in other areas of law, his gay marriage decisions have lionized him among the left. He wants this case and he probably wants to write the decision.
Chief Justice Roberts is a strategic thinker. He might not want his Court remembered for ducking the largest civil rights question of its time. He voted to deny a stay in the Florida marriage case, as well.
Justice Alito, although almost certainly an anti-equality vote on the merits — if you have any doubt, just take a look at his decision in Hobby Lobby or his dissent in Windsor — may vote either way to grant or deny. Alito is no originalist; if anything, he's a conservative maximalist, original document be damned.
The only justices I can see definitely denying review are Justices Scalia and Thomas. As I have argued before, these conservative jurists probably realize that their bigotry cannot win the day at the current Supreme Court. As conservatives and originalists, the last thing they want is to have a Supreme Court decision enshrining what Scalia has derisively called "a right to gay marriage" into the Constitution. Better, they might think, that the Supreme Court stays out of it because any decision would serve as a progressive precedent.
So, what happens next? If the Court grants a hearing, an order will be issued as soon as possible on the next business day. It will usually set a briefing schedule and a hearing date. With briefs likely due over the course of the next 2 months, the Court would be able to hear the cases in March. That would place a decision ready for release at the end of the term, that is, on the anniversary of the decision in Lawrence v. Texas and Windsor.
Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York 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. Ari writes weekly posts on law and various LGBT issues.