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The bottom line: A guide to Prop 8 and the Supreme Court

Prop 8 trial Supreme Court

By Jacob Combs

The first conference of the Supreme Court is scheduled for September 24, and Prop 8 is likely to be making big news soon, either with the Supreme Court considering the case or marriage equality returning to California.  But the timeline of when such an announcement will be made, as well as what it will say, can seem opaque and complex at first sight.  Here’s a guide for what to expect from Supreme Court as its October term begins.

What the conference is, and what it isn’t

Since the Supreme Court takes a summer recess from late June to late September, cases that are appealed to the Court during that time build up into a backlog.  Many of these cases are calendared for the first conference of the year, which will take place on September 24 in advance of the first day of oral arguments at the Court, which are scheduled for October 1.  In advance of the conference, the petitions and response briefs that have been submitted in the various cases over the summer are distributed to the justices, who then meet and discuss how to proceed.

As we’ve mentioned before here on P8TT, the Supremes have discretion over which cases they hear, and usually take up less than one percent of the cases that are appealed to them from the circuit courts.  It’s important to note that the fact that a case is being considered by the Supreme Court in conference has nothing to do with oral arguments nor does it mean the Court will issue a decision on the merits of the case; rather, it is a preliminary step before such arguments and decisions, and one at which the vast majority are dismissed without further consideration by the Court.

At the conference, the justices will discuss and debate internally whether the Court should take up a specific case for oral argument, or whether a case should be summarily reversed without oral argument.  Only four justices’ votes are needed for a case to be considered by the Court in its regular term.

What we’ll hear from the Supreme Court

Following each conference, the Court issues an order detailing the results of the justices’ discussion.  There are three outcomes for a case from the Supreme Court, which is asked to take up cases in a document called a petition for a writ of certiorari.  A writ of certiorari is essentially the fancy name for the document saying that the Supreme Court will take up a case for appeal–the word means “to make certain” in Latin, i.e., the Supreme Court is taking up a lower decision to make certain it applied the Constitution correctly.

The first possible outcome at the Supreme Court is a denial of certiorari, which means the Court will not take the case and the circuit court’s decision is the final say on the matter.  When cases are denied cert (as it is frequently called), they are included in the order in a long list of case names under a heading that says simply “Certiorari Denied.”  Usually, the Court offers no further comment on cert denials, although occasionally the order will include a few words explaining that a specific justice took no part in the consideration of the case.

The second outcome involves the granting of certiorari, in which the Court agrees to hear the case and it is placed on the calendar.  Cases that are granted cert in September are likely to be heard before the Court’s next recess in June 2013.  In the Court’s order following the conference, these cases are listed under a heading that says “Certiorari Granted.”

The final outcome involves a decision by the Supreme Court to remand, or return, a case to the circuit court for further adjuciation.  In the Court’s order, these cases are listed under a heading called “Certiorari — Summary Dispositions.”  When this occurs, the circuit court’s decision is vacated and the case is sent back to the circuit court for consideration under a specific precedent or legal decision laid out by the Supreme Court.  (The circuit court’s new decision could in theory be appealed in turn back to the Supreme Court, although the likelihood of such an appeal being taken up would likely be quite small.)

When the Prop 8 case is considered on September 24, any of these three outcomes could occur.  If certiorari is denied, the Supreme Court will not hear the case and the Ninth Circuit’s decision striking down Prop 8 will be final.  If certiorari is granted, the Supreme Court will hear oral arguments regarding the case sometime in then next term and then issue a decision on the merits of the case.  If the Prop 8 case is remanded, the Ninth Circuit’s decision will be vacated and the panel will have to reconsider the case further pending the instructions from the Supreme Court.

When we’ll hear from the Supreme Court

Generally, the Supreme Court issues orders on Monday mornings at 10 a.m. Eastern time.  The Supreme Court used to announced which cases it would take up on the first day of its term (this year, that would be October 1) but lately it has posted orders online the week before to allow for the briefing schedule to begin sooner.  This means that the Court could announce whether or not it will take the Prop 8 case on September 25.  The days to watch for Court orders, then, are September 25 and the following Mondays, starting with October 1.  (It’s worth noting, however, that the Court can issue miscellaneous orders whenever it wants to.)

One wrinkle in this timeline that some legal observers have speculated about involves the Defense of Marriage Act cases currently pending before the Supreme Court.  Only one of these cases (Windsor) has been calendared for the September 24 conference.  GLAD, which is handling two DOMA cases at the Supreme Court this fall (Gill and Pedersen) doesn’t expect its cases to be conferenced until October 9 at the earliest.  Lambda Legal, which is handling the other DOMA case (Golinski) expects its case to be considered at the October 5 conference.

It is possible that the court will wait to consider all of the DOMA challenges together at one conference.  (Even though Windsor has already been calendared, the Court can postpone its consideration until a later date.)  Some observers speculate that the Court could also wait until that later date to consider the Prop 8 case along with the DOMA challenges.  That seems unlikely, however, since the two challenges raise dramatically different legal questions, and while the DOMA cases make sense to consider together, the Prop 8 case could easily be discussed on its own.

What happens with the stay regarding marriages in California

Of course, the most important question of all is: When can marriages begin again in California?  If the Supreme Court decides to hear the Prop 8 case or remands it to the Ninth Circuit, the circuit court’s stay (and thus Prop 8 itself) will remain in effect.  If cert is denied, however, that will mean that Prop 8 has been permanently struck down.  There is, however, a small but essential piece of legal business to take care of once cert has been denied before marriages can begin.

If the Supreme Court denies cert in the Prop 8 case, the Ninth Circuit panel must issue what’s called a ‘mandate’ before Prop 8 is officially off the books.  When the Court denies cert, an order will electronically be filed with the Ninth Circuit.  The 3-judge panel who struck Prop 8 down would then have to issue the mandate, which would lift the stay and allow marriages to begin.

What this means practically is that there would likely be some delay in between the Court’s order and the time when marriages were officially legal again.  The Ninth Circuit would no doubt move quite quickly to do this, but as Lambda Legal’s Jon Davidson pointed out to me, the wise course for gay and lesbian couples looking to marry in California would be to wait until the issuance of the mandate, as opposed to seeking a marriage license as soon as cert is denied.  In the event that the Supreme Court does deny the cert request, it seems probable the Ninth Circuit would issue an order detailing a specific time when the mandate would go into effect, and that California officials could thus provide further information about the availability of marriage licenses.

As we have since the very beginning of the district court trial in 2010, Prop 8 Trial Tracker will be closely following this case at the Supreme Court, and we’ll have have breaking news updates as soon as we know whether or not the Court will take up the case.  If you have any questions, ask them in the comments below, and we’ll update this post once we have more information!

Many, many thanks to the following individuals whose advice made this post possible: Jon Davidson at Lambda Legal, Chris Stoll and Shannon Minter at NCLR, Carisa Cunningham at GLAD, James Esseks at the ACLU and our own Kathleen


  • 1. Sagesse  |  September 13, 2012 at 8:06 am


  • 2. CHRIS  |  September 13, 2012 at 8:15 am

    I have a feeling all the Chick Fil A "Appreciaters" are going to throw another temper tantrum very soon!

  • 3. jpmassar  |  September 13, 2012 at 8:30 am

    Given that the Supreme Court only takes less than 1% of the cases appealed, and it only takes four Justices to grant cert, what mechanism is there that prevents the SCOTUS calendar from being flooded with cases? There must be some kind of agreement or restriction on limiting the number of cases the Justices agree to hear other than simply the 'four justices' rule, no? Do they stop when they've decided to hear a certain number of cases, perhaps?

  • 4. Scottie Thomaston  |  September 13, 2012 at 8:49 am

    Probably a lot of it is the Justices' leanings. If a Justice thinks there are 5 votes for the other side's point of view, they won't grant a case. If they think it could create bad law for their side they'd vote no. That's sort of what happened with the recent Montana case that was a CU sequel. Four Justices wanted to grant review but they knew it would end badly for case law, so they instead wrote a dissent.

    There's also some procedural stuff I'm not too familiar with, but the Court won't take certain cases that are currently in certain postures.

    Other than that, I don't know if they have an agreement or anything.

  • 5. sfbob  |  September 13, 2012 at 8:51 am

    Prop 8 added a new line to the Constitution of the State of California (Article I, Section 7.5, I believe). What happens to that if the Supreme Court denies cert? Are the results of Prop 8 nullified and the language of Prop 8 struck from state Constitution? Or does it stay there but become unenforceable pending some action taken at state level to remove it?

  • 6. Scottie Thomaston  |  September 13, 2012 at 9:19 am

    Usually it stays but isn't enforceable. (At least that's what happened in previous cases like Lawrence v. Texas.)

  • 7. Mark  |  September 13, 2012 at 9:27 am

    If the Supreme Court decides to remand, or return, the case to the circuit court for further adjuciation, could that decision again be appealed to the Supreme Court for further delay?

  • 8. Frisky1  |  September 13, 2012 at 9:42 am

    South Carolina and Alabama didn't removed the anti-miscegenation clauses in their Constitutions until the late 1990s/2000 eventhough they were unenforceable ever since Loving in 1967. I've heard states often leave such things on the books to intimidate and harass people–as a reminder that their perfectly legal actions aren't welcome in that state. I'd imagine California would act much quicker but a state that was completely against marriage equality for gays and lesbians would probably drag their feet on removing the language when SCOTUS finally does strike down all the bans.

  • 9. W. Kevin Vicklund  |  September 13, 2012 at 9:51 am

    Supreme Court decisions can't be appealed. However, any new decision by the 9th Circuit on remand can be appealed. Hopefully that answers the question.

  • 10. sfbob  |  September 13, 2012 at 9:57 am

    Since California's Constitution requires that changes to it be validated by popular vote, it would have to be removed by a ballot measure. There would of course be a very clear path to such a measure if the court were allow the lower court ruling to stand: it would STILL be unenforceable and I suspect that not only would Prop 8 no longer pass in CA today, a majority would certainly vote to remove it. Under any likely scenario, given the makeup of CA's current electorate, every statewide official would support the removal of the offensive language from its constitution but there will still be some haters out there who'd loudly insist that it remain, and insist that the court rulings were "an insult to the voters of CA." That was one of their objections to all of the rulings thus far, leaving aside, of course the obvious fact nearly as many people voted AGAINST Prop 8 as voted for it; the sensibilities of those voters apparently don't matter much to the haters. There would be no legitimate reason for leaving Prop 8 on the books of course.

  • 11. sfbob  |  September 13, 2012 at 9:57 am

    As Jacob noted, that would be possible but is unlikely.

  • 12. Michelle  |  September 13, 2012 at 10:09 am

    Does anyone have any speculation on which Justices would vote to hear the Prop 8 case? It's a mixed bag to take the case right? On the one hand to have it not heard benefits us in California, however to have it heard and have the chance that they rule against Prop 8 may benefit other states later on as it would set the stage for the unconstitutionality of anti-gay marriage legislation…. Thoughts?

  • 13. Nicholus  |  September 13, 2012 at 10:22 am

    Is it possible that the Supreme Court , after granting cert, could decide which standard of review is appropriate for sexual orientation even though that was not part of the ninth circuit's opinion?

  • 14. Scottie Thomaston  |  September 13, 2012 at 10:32 am

    They can decide any issue that continues to be raised, and even though the Ninth Circuit didn't decide on it, it was briefed there. And the cert petition and response mentions it as well, so if they take it, it could come up. But there would be a question if this case is the best one to use in considering that question or if they should take DOMA cases like Golinski or Pedersen for that (since the record is really strong and there's not yet a circuit court opinion.)

  • 15. Scottie Thomaston  |  September 13, 2012 at 10:33 am

    Well if the Court takes it, it seems more likely the decision would be very narrow. So it would be 'national' in the sense that the highest court did decide on it, but it's also likely the issue they'd decide on wouldn't come up much in the future anyway.

  • 16. Mark  |  September 13, 2012 at 10:36 am

    It does. I was asking about the new decision from the Ninth Circuit. I assumed the Supreme Court decisions were not able to be appealed.

  • 17. Mark  |  September 13, 2012 at 10:45 am

    So this would be the worst case scenario. Supreme Court sends it back to the Ninth. The Ninth rules it unconstitutional once again. It is appealed again, and then we wait for another en banc and/or another appeal to the Supreme Court?

  • 18. Nicholus  |  September 13, 2012 at 10:59 am

    If the Supreme Court grants cert, how long after will they announce the date for oral arguments?

  • 19. SoCal_Dave  |  September 13, 2012 at 11:04 am

    I'm wondering about this third option where the SC returns the case to the 9th Circuit. If this happens, it sounds to me like the SC must disagree with the 9th's decision. Otherwise why send it back? And if the SC tells the 9th "you didn't consider thing A or thing B", doesn't that imply that 9th must consider thing A and thing B, and come to a different conclusion? Or do they actually send things back just to get things A and B into the record, even though the outcome would be the same? (Ugh, I hope my question makes sense)

  • 20. Michaele  |  September 13, 2012 at 11:20 am

    I realize that this is a matter of opinion. I am sure that 1 of two things will happen: the Supreme Court will hear it or it will go back to the 9th Circuit. John Roberts has to make good to the right that he is still on their side given what happened with the ACA. Here is my question: if the Supreme Court sends it back to the 9th with new instructions, could those instructions be so right leaning that the 9th Circuit justices could only rule in favor of Prop 8? Again, I understand this is a matter of opinion. I am just wondering given experience has that happened.

  • 21. Scottie Thomaston  |  September 13, 2012 at 11:22 am

    I think OA is expected in Feb-March. I'm not sure when the scheduling announcement itself will be made.

  • 22. Scottie Thomaston  |  September 13, 2012 at 11:24 am

    If the Court, for example, says that the Ninth Circuit misapplied Romer v Evans, then it's a pretty strong nudge to reconsider their application of that. But they don't have to. Once a new Ninth Circuit decision came out the losing party can still petition the Supreme Court to review that opinion.

  • 23. dbrunell  |  September 13, 2012 at 11:25 am

    In a CLE (Continuing Legal Education) class I attended last week, Neal Katyal, formerly of the U.S. Solicitor General's office (who argues cases before the Supreme Court) thinks it's unlikely the Court will grant cert because the 9th Circuit's decision was very narrow and affects only California. I can only hope.

  • 24. dbrunell  |  September 13, 2012 at 11:29 am

    I know this article mentions remand with instructions, but it's not that common an outcome. It is if they have issued a recent ruling on an issue, but otherwise, not so much. Say, for example that Georgia's HB 87 were in the pipeline at the Court around the time of Arizona's SB 1070, like, now, for example. It would be likely the would summarily dispose of the case:
    "Certiorari granted. The decision of the 11th Circuit is reversed/remanded pursuant to U.S. v. Arizona" or something like that. Here's there's not much they can do like that. They could try to do it that way, but it won't really clarify ANYTHING, so I doubt that's a likely situation. It's more likely they'll deny cert (see my comment) or perhaps grant it and schedule the case, but I doubt it will be disposed of summarily.

  • 25. Scottie Thomaston  |  September 13, 2012 at 11:29 am

    Actually a remand back to the Ninth Circuit is the least likely course. The most likely outcome is a straight-up grant or denial.

    And as for your question it depends on which legal facts the Court think the opinion misapplied. Sure the Ninth could be essentially backed into a corner, it's possible. But it's hard to see how damaging it could be since this case is so limited. Any loss is bad (and it took 17 years to overturn Bowers v Hardwick and that's considered fast for the Court) but the decision already only impacts one state.

  • 26. dbrunell  |  September 13, 2012 at 11:43 am

    I know this article mentions remand with instructions, but it's not that common an outcome. It is if they have issued a recent ruling on an issue, but otherwise, not so much. Say, for example that Georgia's HB 87 were in the pipeline at the Court around the time of Arizona's SB 1070, like, now, for example. It would be likely the would summarily dispose of the case:

  • 27. MightyAcorn  |  September 13, 2012 at 12:32 pm

    Thanks Jason for writing this article concisely addressing the questions we all needed answered, and equal props to the authors of the excellent follow-up questions and answers in this thread. I've reached the point where I've stopped trying to guess heads-or-tails here, knowing that whatever decision on cert is reached I'll be both elated and disappointed. Am looking forward to dissecting the aftermath with you all, of course. :)

  • 28. davep  |  September 13, 2012 at 12:38 pm

    Thanks to Jacob & P8TT. This is a particularly clear and informative article. Well done!

  • 29. Guest  |  September 13, 2012 at 12:51 pm

    Yeah, the cert pool. Although there is no limit to the number of cases that can be heard. In fact, the Court should be hearing many many more than they currently are.

    Here is an excellent primer on SCOTUS procedure:

  • 30. Guest  |  September 13, 2012 at 12:59 pm

    Kevin is right although the Court would not be "deciding" the case but "remanding" it: returning it to the lower 9th Cir. Court for further consideration. This is a distinct possibility in this case because it buys them enough time to get through this election and perhaps into another term. However, what I would look for would not be a remand for reconsideration in light of Baker v. Nelson, but something more like remanded for reconsideration in light of Allen v. Wright or some similar case on Art. III standing and generalized grievances. If the Court does take this case, its decision will certainly be landmark, but it will also almost certainly be a standing case.

  • 31. David Henderson  |  September 13, 2012 at 1:49 pm

    Which Justices decide to take a case is never disclosed anywhere, so there's nowhere to look for historical guidance on who would be likely to vote to take it.

  • 32. cyrix  |  September 13, 2012 at 3:15 pm

    Can't the marriage equality foes just make another ammendment with different wording and send the 'revised prop8' to the voters which would make us do all of this all over again? they couldk do it every election year until it 'passes'?

  • 33. Guest  |  September 13, 2012 at 3:16 pm

    Doody v. Ryan is a recent Miranda case that was returned to the 9th Cir. on remand with instructions, and the 9th Cir. reiterated its first holding more forcefully. The Supreme Court then declined to hear the case. So, this does happen.

  • 34. Mike in Baltimore  |  September 13, 2012 at 3:18 pm

    From the article, discussing a remand from SCOTUS to the previous court (in this case, the 9th Circuit):
    "(The circuit court’s new decision could in theory be appealed in turn back to the Supreme Court, although the likelihood of such an appeal being taken up would likely be quite small.)"

  • 35. Mike in Baltimore  |  September 13, 2012 at 3:25 pm

    SCOTUS doesn't decide all cases following oral arguments. 25% to 40% of cases are decided without oral arguments, although I don't expect this case to be one decided without oral arguments.

  • 36. Guest  |  September 13, 2012 at 3:44 pm

    Usually the Court remands for reconsideration in light of a recent decision. For example, in the case I mentioned above, Doody v. Ryan, the Court remanded in light of Florida v. Powell, which was decided that same year.

  • 37. Guest  |  September 13, 2012 at 4:01 pm

    I think this has a possibility of being remanded to the 9th cir. for misapplication of standing doctrine. This is how it would play out. The SCOTUS will issue a judgment to remand with instructions. These instructions will not be so constraining as you might think, but will be limited to a phrase like "reconsideration in light of … *insert case name*. The 9th Cir. clerk will reopen the case under the original docket number and assign this to Alex Kozinski, the chief judge. At that point, the CJ will assign the case to the original three-judge panel IF it is available. If it is not available, then to the remaining judges plus newly selected judges. In this interim, the 9th Cir. may also elect to pursue an en banc review instead of a panel. An en banc affirmation shows the United States Supreme Court that a strong majority of the Court below agrees with the original panel decision and sends a powerful signal. Once the 9th Cir. issues a final judgment, this may again be appealed to the United States Supreme Court by the losing party, at which point there is zero chance of a remand, the court will either grant the petition and decide the case or decline to grant cert.

  • 38. David Henderson  |  September 13, 2012 at 4:05 pm

    I think if they were to try that, an immediate injunction would be sought because it is clearly in violation of the previous rulings, and it would most likely be granted because the plaintiffs would be able to show a very high chance of success on the merits. So such a hypothetical subsequent amendment would get put "on the books", but never have a chance to be enforced.

  • 39. Guest  |  September 13, 2012 at 4:07 pm

    Actually, Justices may dissent from a cert. denial in the denial itself. This occurs, on average, two to three times a year.

  • 40. Guest  |  September 13, 2012 at 4:10 pm

    The excellent SCOTUSblog is hosting a symposium on the same-sex marriage and DOMA cases next week:

  • 41. David Henderson  |  September 13, 2012 at 4:16 pm

    Yes, you're right about that. And occasionally there will be an opinion in support of the denial of cert., for example, to say that while the justice agrees that (blah) is an important question, they don't think this case is the best one to decide that issue because (other blah). However, those are the exception, not the rule.

  • 42. David Henderson  |  September 13, 2012 at 4:34 pm

    Example of this: In Equality Foundation of Greater Cincinnati, Inc., et al. v. City of Cincinnati et al. (97–1795), Justice Stevens wrote this in regard to a case where the Cincinnati city charter was amended to forbid the city council from adopting or enforcing any civil rights ordinance with respect to sexual orientation, which was upheld by the Sixth Circuit:

    Opinion of Justice Stevens, with whom Justice Souter and Justice Ginsburg join, respecting the denial of the petition for a writ of certiorari.

    As I have pointed out on more than one occasion, the denial of a petition for a writ of certiorari is not a ruling on the merits.[footnote] Sometimes such an order reflects nothing more than a conclusion that a particular case may not constitute an appropriate forum in which to decide a significant issue. In this case, the Sixth Circuit held that the city charter “merely removed municipally enacted special protection from gays and lesbians.”[footnote, citation]. This construction differs significantly, although perhaps not dispositively, from the reading advocated by the petitioners. They construe the charter as an enactment that “bars antidiscrimination protections only for gay, lesbian and bisexual citizens.”[citation]

    This Court does not normally make an independent examination of state-law questions that have been resolved by a court of appeals. [citation]. Thus,
    the confusion over the proper construction of the city charter counsels against granting the petition for certiorari. The Court’s action today should not be interpreted either as an independent construction of the charter or as an expression of its views about the underlying issues that the parties have debated at length.

  • 43. Guest  |  September 13, 2012 at 6:38 pm

    I think the AG could refuse to certify the question for the ballot.

  • 44. Chris Stoll  |  September 13, 2012 at 7:04 pm

    Chris Stoll from NCLR here. The Supreme Court has long-established guidelines for when it will and won't take cases. Normally they will only take a case if different federal courts of appeals have reached different results on the same issue, or if the case involves an issue of overwhelming importance that calls for a national resolution, such as the recent decision upholding President Obama's Affordable Care Act. They take these guidelines very seriously and rarely take a case that does not meet the standards. That is why, of the thousands of petitions they receive , they only accept 100 cases or so per year.

  • 45. Chris Stoll  |  September 13, 2012 at 7:10 pm

    Chris Stoll from NCLR here. Given that this case is coming to the Supreme Court following a full trial and the only real issues are fundamental constitutional questions, I think it's highly unlikely that the Court would send it back to the Ninth Circuit. If they take the case, it will be to issue a final and definitive ruling.

  • 46. Chris Stoll  |  September 13, 2012 at 7:14 pm

    That is interesting. Neal Katyal is a very smart guy who knows the Supreme Court well. He was Acting Solicitor General after Elena Kagan was appointed to the Court. He knows what he is talking about.

  • 47. Guest  |  September 14, 2012 at 8:38 am

    The Supreme Court has never let facts or procedure get in the way of the results it wanted before. If it wants to punt, it will.

  • 48. fiona64  |  September 14, 2012 at 9:27 am

    So, if I'm understanding this correctly, since both Judge Walker and the 9th Circuit found Prop 8 to be unconstitutional, and the Prop 8 ruling from the 9th is narrowly tailored to CA, it would be highly unlikely for cert to be granted? There is no difference in the Federal opinions rendered thusfar.

  • 49. davep  |  September 14, 2012 at 11:38 am

    Yup, that seems like the most likely outcome. We'll know in just a couple of weeks…

  • 50. Jamie  |  September 14, 2012 at 12:01 pm

    There are a number of amendments to CA's constitution that have been found unconstitutional over the years, but there does not appear to have been votes to remove them, and they aren't there in the constitution that's available online. I don't see anywhere in the constitution where this issue is dealt with, so I assume that the AG removes the sections when they are found unconstitutional.

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