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Supreme Court will look at marriage cases today for the first time this term

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It's time for marriage equality. Attribution: JEWEL SAMAD/AFP/Getty Images
It’s time for marriage equality. Attribution: JEWEL SAMAD/AFP/Getty Images
Today, the Supreme Court is set to hold its first conference of the October 2014 term, and seven petitions in same-sex marriage cases are among those that will be considered.

The Court’s term begins on the first Monday in October, by statute, but its work will begin today, when the Justices will review petitions and consider them for full argument and decision this term. The first conference of the term is known as the “long conference” because the Justices will take their first look at all the petitions that have been filed since last June, when the October ’13 term ended. Unlike most of its usual conferences, today’s will involve hundreds of petitions.

A conference is closed off to the public – not even the Justices’ clerks are allowed in the room – and the only public word from the Court after the conference will be its order list. That list usually is released the Monday following the conference, because the Justices usually hold conferences at the end of the week. The list from today’s conference could be released today (although that probably isn’t incredibly likely), Tuesday, or next Monday, October 6, when the Justices will hear arguments in the first cases of the term. It’s also possible that multiple orders could be released over a period of time.

In the conference room, the Justices will discuss each petition for review and decide whether or not the issues are worthy of full consideration and decision, and whether or not each petition presents an appropriate vehicle to decide the question. Some cases might pose interesting or important questions, but procedural pitfalls in one case or another might prevent the Court from being able to resolve it. That’s true of any case, including the marriage cases at issue in today’s conference: the Justices will be careful to think about which marriage cases might be presented in a problematic way in terms of its full review.

Most of the Court’s cases are taken up when they grant a petition – a process that’s completely discretionary. There are some issues that aren’t discretionary, but those are very few. This means that the Justices essentially can decide on their own whether or not to hear any case, whether any particular issue is important, and even how many cases they want to decide each term. There’s nothing that would force the Justices to take up an issue like same-sex marriage, even when a lot of appeals courts have struck down state bans. Because they are able to manage their docket however they want to, it’s nearly impossible to predict which cases will be taken up, and when a case may be reviewed.

One of the factors that is considered is a “circuit split” – that is, when appeals courts disagree on an issue. The Court likes to resolve deep splits among the circuit courts and make the law more stable. But that factor doesn’t always determine the fate of a petition: just recently, in the challenges to DOMA, there was no circuit split whatsoever on the issue; all the appeals courts to decide the issue were in agreement. The Court still decided to review the Windsor case. But a circuit split certainly tips the scales in favor of review. That’s likely what prompted Justice Ginsburg’s comments about watching the Sixth Circuit Court of Appeals to see if they uphold the marriage bans under review.

It only takes four votes for review, but there are several issues at play that often prevent four Justices from voting to hear a case. Many of them are procedural, over whether a case is or is not appropriate, or whether a case may become moot before there’s an opinion by the Court. But some Justices may also vote or deny a case based on whether they believe their view would have at least five votes were the full Court to hear the case. The Court also added a new wrinkle to its procedures last year: although informal and not a “rule”, the Justices granted cases last term after they had been taken up at a conference and then “relisted” for consideration at a second conference. The Justices haven’t commented on why they decided to do that, but it’s possible they could do the same thing this year. That could mean that the marriage cases could be relisted once even if four Justices were inclined to grant one or more marriage cases. If marriage cases are indeed relisted for a second conference, we could find out on the afternoon of the day the order list is released, when the dockets are updated.

We won’t know which Justices voted to grant review, as that’s not made public. (Sometimes Justices release their papers after their death, and their vote on certain petitions can be found in those, but that wouldn’t happen for awhile.)

There are seven petitions in marriage cases: three from the Virginia case in the Fourth Circuit, two from the Tenth Circuit, in the Utah and Oklahoma cases, and two from the Seventh Circuit, in the Indiana and Wisconsin cases.

The Court doesn’t have to grant or deny any of the petitions at today’s conference, or at any specific point: they can essentially hold onto the petitions for as long as they like. They could decide to wait for the Sixth and Ninth Circuits to weigh in, or even to see what the Fifth Circuit decides when it takes up cases from Texas and Louisiana later this year. The Justices could even hold onto petitions into the next term. This seems unlikely given the importance of the issue, but it’s not at all a foregone conclusion that the Justices would simply deny review if they were inclined to wait on other appeals courts to weigh in on the issue.

In fact, the Court may be inclined to avoid denying petitions outright. When the Justices deny review in a case from an appeals court, the appeals court’s decision is final and it’s considered binding precedent in that circuit – but not nationwide. So if, for example, the Court declines to review the Virginia case and denies that petition, the Fourth Circuit decision striking down Virginia’s marriage ban would be binding on all states within the Fourth Circuit – most of which don’t allow same-sex couples to marry. It wouldn’t mean that the states in those circuits would immediately be forced to allow couples to marry (although it would in Virginia itself), instead it would mean that the challenges to other bans in the circuit are very likely to be struck down quickly with the Virginia case as binding precedent.

In a situation like the Court is facing now, that would mean that states within the Fourth, Seventh, and Tenth Circuits would each be faced with binding circuit precedent voiding marriage bans. The Court would effectively legalize same-sex marriage in 30-35 states without saying a single word on the subject. That prospect doesn’t appear to be likely: after all, the Justices decided to review the Prop 8 case, even when faced with procedural issues and a Ninth Circuit opinion that was California-specific. If the Justices were uncomfortable letting the Ninth Circuit have the final word on same-sex marriage bans in all the states in that circuit, it seems even less likely they’d allow three circuits to be the final word. It would also present strange issues: if the Court denies review and states in those circuits start allowing people to marry, and the Court then takes up a petition from the Fifth, Ninth, or Eleventh Circuits and decides there’s no nationwide right for couples who are the same sex to get married, that would mean a lot of marriages are of questionable legality across the country.

It seems more likely the Court would hold onto the petitions until it’s ready to decide a case, but again, it’s totally up to the Justices how to manage their docket. Those of us who aren’t inside the Court can only speculate.

If the Court does grant one or more of the petitions, it could still hold on to the rest until it issues a decision.

If you’re interested in petitions the Court may take up for review (marriage cases, but also many other issues), SCOTUSBlog has a three-part series on petitions that present issues SCOTUSBlog believes the Court may consider for review. Part 1 is here, Part 2 is here, and Part 3 is here. This list isn’t an exhaustive list of all the petitions the Court will consider, only the ones that seem to have a good chance of being taken up.

EqualityOnTrial will be watching the Court this week and next for updates. We’ll report back as soon as there’s news.

71 Comments

  • 1. SethInMaryland  |  September 29, 2014 at 8:06 am

    i don't think they will do anything today, their waiting for the 6th to make it

  • 2. hopalongcassidy  |  September 29, 2014 at 8:54 am

    If they didn't release the list until next Monday, the first day of arguments, how does counsel have any time to prepare? I don't mean the case exactly but how about travel arrangements…logistics, etc.?

  • 3. DoctorHeimlich  |  September 29, 2014 at 9:05 am

    The Court has already granted cert in the cases being argued next Monday, and for a number of cases running through the month of October and beyond. The petitions being considered today at the long conference are vying for argument slots later on in the term.

  • 4. DaveM_OH  |  September 29, 2014 at 9:33 am

    The cases being argued on Monday, Oct. 6, were initially heard in conference in January (Heien – Granted on Apr. 21) and February (Indymac – Granted on Mar. 7).
    See the Argument Calendars at http://www.supremecourt.gov/oral_arguments/argume
    through the end of 2014.

  • 5. JayJonson  |  September 29, 2014 at 9:38 am

    Citing a study confirming our sense that the big cases are decided on the final days of the term, the New York Times says we are likely to know whether the right to marry will be extended to same-sex couples throughout the country on June 29, 2015.

    "The court has released its calendar for the new term, and it may contain all the data you need to predict when the court will determine whether there is a constitutional right to same-sex marriage. The last day on the schedule is June 29, 2015."

    http://www.nytimes.com/2014/09/30/us/politics/sup

  • 6. debater7474  |  September 29, 2014 at 9:41 am

    They probably won't do anything until after the midterms. This conference is just an opportunity for the media to write stories and get clicks for ad revenues.

  • 7. SethInMaryland  |  September 29, 2014 at 9:55 am

    ikr, i woudn't even be surised if they didnt talk about it all

  • 8. Ragavendran  |  September 29, 2014 at 10:14 am

    Well, if they don't, that wouldn't explain the last minute rush by the clerks to force all seven petitions to be distributed for today's conference on September 10, despite the fact that some of the required filings in these petitions hadn't been filed yet by then – a rarity, according to Lyle Denniston of SCOTUSblog. I think at the very least they'll reserve a few minutes to talk about the cases.

  • 9. Ragavendran  |  September 29, 2014 at 10:16 am

    Except, the Court sometimes (or frequently, I don't know) adds a couple of extra dates to the end of the calendar if they need more time. So, for example, we could have our decision on July 3 instead of June 29.

  • 10. hopalongcassidy  |  September 29, 2014 at 10:25 am

    Ah, got it. Thanks, I should have known that…

  • 11. TimATLGA  |  September 29, 2014 at 10:42 am

    I think we've previously established that cert would need to be granted by the end of December in order to make it on the schedule in time for the last oral arguments in April, is that correct? So if we don't see cert granted in the next three months, then we have to wait until the following term for a decision?

  • 12. DaveM_OH  |  September 29, 2014 at 10:51 am

    Tim: The Term calendar historically isn't fully filled until the Conference immediately after the MLK Federal Holiday. So IMHO, that's the drop date.

  • 13. Ragavendran  |  September 29, 2014 at 10:52 am

    I forget the exact date – whether late December or early January. But yes, barring exceptional circumstances where the Court perceives the matter very urgent, if cert isn't granted by then, then we'd have to wait for their next term for a decision. (They could grant/deny cert between January – June, or, much less likely, hold the petitions until next Fall.)

  • 14. SethInMaryland  |  September 29, 2014 at 10:56 am

    maybie they will, but i don't know, remerber back pro8/doma wnet on it's first confrence we learned that following day that they didn't talk about it very much if any

  • 15. DrPatrick1  |  September 29, 2014 at 3:48 pm

    Scottie, I disagree with your application of what happened in Prop8 to predicting the whats and whys this go around. When SCOTUS grants cert, we don't always know the real federal question(s) they will decide. In the prop8 case, the 9th circuit attempted to answer a federal article III standing issue, and went above and beyond to try to settle the issue in a way they wanted. SCOTUS, as it turns out in their decision, clearly did not agree with that issue, and never even reached the merits of the case. Thus, in hindsight, it is reasonable to argue SCOTUS granted cert to answer the standing issue, and likely never intended to address the merits. Thus, I argue, it was exactly those procedural issues and not the merits which caused them to grant cert. it was not ins spite of those issues.

    This go around, there is such a variety of cases to choose from, with more on the way. It is hard to imagine they could dodge them all on procedural grounds. I think it is more likely that they will deny cert, than it is that they will grant cert just to have their say.

    My prediction: relist all the cases each conference until 6th weighs in. If 6th rules pro equality, we will see certs DENIED. If 6th rules pro discrimination, cert will be granted and all cases will be held pending resolution of that case. If 6th doesn't rule by end of October, certs will then be denied.

    I think the moderates want to let this percolate longer, but are ready to rule pro equality if there is a fresh split. The reactionary conservatives do not want a precedent set by this court.

    This will delay nationwide equality, but will send a strong message to the lower courts that these circuit decisions are correct. It will be much harder to support discrimination once SCOTUS cleanly allows ME to happen. (CA was not a clean case, so SCOTUS said they could not make a decision on the merits. But if they deny cert, the implications would extend beyond just that circuit!).

  • 16. mworley88  |  September 29, 2014 at 5:43 pm

    If your theory is correct, then Kennedy, knowing cert was granted for that issue, would never have questioned if cert was properly granted in oral arguments.

    Cert will be granted here.

  • 17. weaverbear  |  September 29, 2014 at 6:11 pm

    I tend to agree with you here. I suspected that the cert on 8 was granted specifically TO decide the standing issue, and when I saw the amount of time they focused on standing in their questioning, I was not surprised with their ruling in 8.

    However, even if we get a pro ruling in the 6th, the 5th when it hears Texas and now Louisiana as well is very likely to give us that split. My only question is will it happen this calendar year? Will that ruling even make in time to appeal to the court this term?

    So, perhaps someone here can edify me. If SCOTUS declines to grant cert in any of the cases brought to them so far, and if they hear no case this term, where does that leave us in the various circuits? If they grant no cert this term, will things be held until the following term Or do the cases we've won, go into effect with stays ended? And what about the states in other parts of those circuits? If they decline cert in Bostic, then we get ME in Virginia AND in the remainder of the 4th? If they hear Kitchen, but decline the cases from the 4th and 7th, what happens in those circuits?

  • 18. brandall  |  September 29, 2014 at 6:58 pm

    While I cannot disagree with your premise, I absolutely, positively do not want to see this happen for one and only one reason.

    If your hypothesis play out, then we are left with an unresolved final disposition about the cake maker. Thousands of hours of debates have been spent on this site and most state arguments for the ban on based on eight words… "dismissed for want of a substantial federal question."

    For those of you who haven't yet connected the dots or in this case, the bread crumb trail, I am referring to Baker v. Nelson. A case that is cited and does not hold water or flour for that matter. According to the states fighting the bans, Baker has far more yeast in it then any of us on this site believe. Baker has "risen" far more then it deserves.

    I want SCOTUS to say Baker is molded and stale and should never be consumed again in any case anywhere in the land….or in the oven.

  • 19. DrPatrick1  |  September 29, 2014 at 7:06 pm

    I reread the transcript to see the context of Kennedy's question. He said this after remarking that there was a serious question of standing. He said Olson wanted SCOTUS to find that once a state went halfway, went 70% of the way toward equality! then could not stop short of 100% , which is an odd ruling! and in a case with standing issues nonetheless. He was saying such a ruling, from such a case seemed preposterous, no wonder people were wondering if the case was properly granted. Indeed, in the end, they ruled the merits of the case was NOT properly granted, as the proponents did not have standing.

    Of course, there were other questions at issue (namely the merits of the case) but even at oral arguments, the majority of court watchers thought there would not be 5 votes granting standing to the proponents. There was debate whether they would DIG the case or rule on the standing issue. Very few knowledgeable court watchers thought they would rule on the merits.

  • 20. DrBriCA  |  September 29, 2014 at 7:10 pm

    These hypotheticals have been asked a few times over the past couple weeks, so I'l take a crack at answering them from what I've gleaned recently. (IANAL)

    SCOTUS could indeed hold off on granting/denying cert on the the cases through this term. It's rather rare for them to completely dodge a question all term (and I would think even rarer for the scenario where they already have 7 petitions prior to starting the present term!), but it's still possible if they're indeed holding out for an anti-ME ruling from the 6th or 5th (which will probably continue to drag their feet).

    The current cases will remain stayed until cert is denied or until a ruling is made if cert is granted. SCOTUS may choose one case out of the mix (say, Utah or Virginia) and then not comment on cert for the other cases until it rules on the chosen case. (It would be highly unlikely for them to simultaneously grant one petition AND deny the others… the others will likely just remained stayed until the granted petition has a ruling.) Once the decision is released next year, then the SCOTUS will quickly dispense with the other petitions based on the controlling decision. The circuits will then all follow the direction of the big decision.

    If cert if denied for a circuit ruling, such as Bostic, then the 4th's mandate is immediately issued and Virginia itself must start issuing and recognizing same-sex marriage licenses. The remaining three states (WV, NC, SC) would not immediately have ME, per se, but the current lawsuits that are all stayed pending Bostic's decision would be then summarily decided in short order within a few weeks, and they would have to rule in favor of ME based on the new precedent.

  • 21. Ragavendran  |  September 29, 2014 at 7:14 pm

    Check this comment by DaveM_OH on this article. If the link doesn't directly take you to his comment (it is supposed to, but didn't for me), it is the last but one comment (as of now) on that page. He provides a detailed overview of what would happen if cert is denied in all petitions currently before the court. There is a possibility that they hold on to the cert petitions until next term, but that is unlikely. They could also grant cert later this term, after waiting for the Fifth Circuit to rule, in which case we won't have a decision by 2016.

  • 22. DrBriCA  |  September 29, 2014 at 7:17 pm

    I agree! It's high time for SCOTUS to put the nail in Baker that it justly deserves. I've enjoyed the several decisions that have quoted RBG during the hearings last year, but it's time to get that in official writing. Plus, the "want of a substantial federal question" occurred the minute the first state started issuing licenses that the other 49 states had to decide to recognize or not. Windsor put major nail in the coffin last year by adding federal recognition to marriages, leading to the current quagmire for married couples living in anti-ME states who can't get federal SSI or VA benefits still!

    I like to think that RBG's comment the other week also shows how Windsor provided significant doctrinal change, given that she doesn't seem to think of the 8th's pre-Winsor Bruning ruling from 2006 (based on Baker, no less) as causing an existing circuit split.

  • 23. ragefirewolf  |  September 29, 2014 at 7:19 pm

    Hehehe. I love your puns.

  • 24. DrPatrick1  |  September 29, 2014 at 7:21 pm

    It depends…

    I think they will deny cert without a fresh circuit split soon. If they deny cert, this will certainly inform what happens in the 5th. I doubt the court will hold cases, and the stays, while waiting for a split that may never happen. The 6th is likely the only circuit with a chance to rule soon, providing the only quick fresh split.

    If: SCOTUS denies cert, then Marriage is granted only in those cases, but will undoubtedly follow in the remaining states in those circuits and stays will not be granted. Other circuits will unlikely rule against ME, seeing a clear sign that SCOTUS has moved on, but these cases will not be as quick. In this scenario, we may never get a SCOTUS ruling unless a circuit rules against ME.

    OR: SCOTUS can hold all cases, indefinitely, possibly to wait for a potential fresh circuit split. If the 6th provides that split, this scenario is plausible, with all cases on hold pending a SCOTUS ruling.

    OR: SCOTUS could grant cert now, again holding all cases until a decision is released.

    It is unlikely to deny cert in any case, but grant it in others. An exception might be if they deny cert now, then a circuit split happens, they will certainly grant cert then to that fresh case.

    Basically, it will be all or nothing. Grant cert in one case and hold the others, or deny cert in all cases before them now.

  • 25. DrPatrick1  |  September 29, 2014 at 7:23 pm

    If they deny cert in an appeal that grants marriage equality, it means they agree with the court below. Thus, baker will be dead! Not even Brian Brown would try to resuscitate that corpse!

  • 26. Leo  |  September 29, 2014 at 8:17 pm

    In Prop8, cert was explicitly granted on two questions: standing and merits. So I think we can infer that at least four justices wanted to reach the merits. Otherwise, why wouldn't they have granted cert on standing only?

  • 27. DrPatrick1  |  September 29, 2014 at 8:36 pm

    I do not posit that the merits were irrelevant, only that ultimately cert was required to overrule the precedent of granting a non injured party article III standing. If they had found that proponents had standing, they would have to reach the merits. Has SCOTUS ever granted cert only for standing? Wouldn't the standing issue always just be a first step issue, they have to reach that first before the merits?

    I only mean granting cert in Hollingsworth does not necessitate granting cert now. There were other important federal issues at stake in that case which required cert to correct.

  • 28. jm64tx  |  September 29, 2014 at 10:50 pm

    Thats not what a denial of cert means at all.

    "Of course, "[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times." United States v. Carver, 260 U. S. 482, 490 (1923). A fortiori, far from lulling respondents into a false sense of security, our previous decision in Jenkins v. Missouri put respondents on notice that the Court had not affirmed the validity of the District Court's remedy, 495 U. S., at 53, and that at least four Justices of the Court questioned that remedy, id., at 75-80 (Kennedy, J., concurring in part and concurring in judgment)."

    So, denial of cert is not a blessing of anything by SCOTUS. And it certainly does NOT overrule a prior case. It is in effect a "no decision".

  • 29. guitaristbl  |  September 30, 2014 at 7:18 am

    So we basically have three possible outcomes :

    – The court granting cert to one or more marriage cases (likely if it grants cert to one it will hold the others)
    – The court denying cert to the marriage cases
    – The court relisting the cases for its next conference (which is the most probably case right now imo)

    I do hope we get the list today and not on Monday, but it doesn't matter IMO, they will all be relisted until the 6th (at the very least) hands down its decision(s). If in a magical way the 6th rules in favour of equality, I do hope they won't keep the cases on hold until the 5th decides really…We all know (and the judges of course) which way the 5th will rule, so waiting for the certain split seems silly. Grant them and let it be the end of it.

  • 30. Waxr  |  September 30, 2014 at 8:07 am

    I would like to see the Court deny cert. It isn't likely, but the conservative justices may realize that with the current split, they will lose. If they wait, the Court could take the issue up after a Republican is elected and the Court balance is in their favor.

    A denial of cert. would lift the stays and those states will immediately have ME. Plus it will have a positive effect on future Court decisions.

  • 31. JayJonson  |  September 30, 2014 at 8:23 am

    In theory, lifting the stays will have a positive effect on future court decisions. But it is not inconceivable that we could get a rogue panel in the fifth circuit that will not read the signal from SCOTUS the way we do, and the issue will be prolonged for at least one term and maybe two.

    While there would be 30-35 states enjoying marriage equality, adverse rulings in the Fifth, Sixth, and perhaps others would leave some states without marriage equality.

    As you indicate, the balance on the Court in favor of marriage equality is precarious. Should we lose for whatever reason Kennedy, Ginsburg, Breyer, Kagan, or Sotomayor and a Republican appoints a replacement, SCOTUS will rule against us.

    It might be safer to hope that they grant cert sooner rather than later and issue a ruling that settles the issue once and for all.

  • 32. guitaristbl  |  September 30, 2014 at 8:59 am

    A republican being elected in the white house in 2016 is not as probable as many may think. Clinton has been paired in polls with every possible candidate and she seems to have double digits over everyone, even more those likely to win the primaries (and we know the reps voting in primaries are as extremist as it goes most of the times) like Cruz.
    Even if a republican wins, the only way for the court balances to change is for a liberal judge to step down. Kagan and Sotomayor are the youngest on the bench and Breyer and Ginsburg have said they are in good health. Ginsburg has been pressured so much to step down and she refuses to do so. I doubt she would risk it to not be able to cope with her duties during a republican presidency and have to step down then if she was confident she could hold on.
    The pressure is on Scalia now imo. Another democratic term in the white house is something he will need a lot of willpower and luck to endure, without stepping down.

    A denial of cert is not panacea for anything and yes it is terribly unlikely. If we are to put faith on denial of cert, people in states like Texas and Louisiana will never get marriage equality in the near future. And if the court denies cert to those cases currently in front of them and grants a 5th circuit case and upholds the bans eventually, this will also mean that ME in the states that are covered by the 7th,10th or 4th will be in danger as a decision on merits will overrule the denial of cert that granted ME in the states in these circuits.
    The granting of cert is inevitable one way or another eventually. The only way denial of cert will prove effective is if the 6th, the 5th, the 8th and the 11th all rule in favour of equality and that is impossible.

    Also you put too much faith in Kennedy when you say that the conservative judges realize they will lose with the current split and you put too little faith in the conservatives and their ability to swing him their way on this issue, which is neither Windsor nor Lawrence. And Kennedy is becoming more and more conservative over the years from what I can figure out from his decisions and opinions. I believe the conservatives want to grant those cases more than the liberals at this point.

  • 33. Zack12  |  September 30, 2014 at 9:29 am

    Kennedy has always been conservative so many of his rulings haven't shocked me at all.
    But when it comes to same sex couples and punishment for minors, Kennedy has sided with the liberals more often then not.
    And I don't see that changing here.

  • 34. Mike_Baltimore  |  September 30, 2014 at 10:23 am

    I agree that married couples living in anti-ME states who can't get Federal SSI or VA benefits is a travesty, but that is not because of SCOTUS, but because of the language in the bills that created SSI and the VA.

    It will take a rewrite of those bills for some married couples to get the benefits (which I don't see happening until 2023 or later [the House is too gerrymandered until at least after the next Census for such a concept to pass), OR SCOTUS will have to rule on a case for those changes [and to my knowledge, there are no cases even in Federal District Court]. Even if SCOTUS rules, it could be 2018 or later for it to issue a decision. And if it does, what other changes would have to be made in those two specific laws to accommodate the SCOTUS rulings?

  • 35. guitaristbl  |  September 30, 2014 at 10:29 am

    I still am highly skeptical on Kennedy and still suggest cautioned optimism, not outright certainty. He has shown sensitivity on those issues indeed and Posner's argumentation in his decision includes both premises (gay rights and the fact that minors are harmed as their parents are not legally recognized as their parents – at least one of them – when the bans are in place) but again it will take more than that for Kennedy to overturn state laws and partsof state constitutions especially, given that we are talking about 19 v 31 when it comes to states with marriage equality (and imo Lawrence has showed that such balances do play a role).
    All conservative justices have their liberal weaknesses, even Scalia who stands on the other side of the aisle with the conservatives when it comes to the interpretation of the 4th amendment.

  • 36. Eric  |  September 30, 2014 at 10:35 am

    Kennedy isn't conservative, he thinks of himself as a libertarian.

  • 37. Eric  |  September 30, 2014 at 10:39 am

    The argument would be along the lines of one's right to travel. Federal entitlements can't just stop, a takings, just because one crosses a state line.

  • 38. Waxr  |  September 30, 2014 at 11:05 am

    Clinton may be leading in the polls, but that is only because nobody is running against her. That is sure to change in 2016. In fact, if she is on the ballot, I may vote Republican.

    Ginsberg makes me nervous every time I look at her. I admire her, but she could go at any time.

    ME is a hot issue, but even conservatives on the court must be aware that popular opinion is moving towards ME. Even Michele Bachmann is attempting defuse ME as a political issue.

    It is likely that neither the conservative nor liberal justices want to deal with this issue because it will be interpreted as the Court imposing their will on the people. It would look much better if ME is legalized one state at a time.

    Currently several district courts, and perhaps circuit courts are biding their time to see what the Supreme Court does. Even if those circuit courts rule negatively, it would only be that a state has a right to ban ME. Not that ME is unconstitutional.

    If you are worried that Kennedy is turning conservative, why do you want to put ME in his hands?

  • 39. guitaristbl  |  September 30, 2014 at 11:30 am

    Clinton is leading the polls when she is put against every one of her opponents one by one, not all together. Not that it's any of my business what anyone votes but Cruz seems to be the most probable candidate to go against Clinton at this point in 2016, would you vote for him as well ?

    Ginsburg has assured everyone she is perfectly healthy. She is timid and tiny but that doesn't say anything about the state of her health. Again, I doubt she would take any risks to tip the court more to the conservative side.

    Conservatives on the court do not care about such things, liberals do not either for that matter. These judges would continue to oppose equality even if 90 % of the country supported it and liberals would continue supporting it, even if 90 % opposed it and that's simply because there is a vast difference to judicial philosophy between those two "aisle" of the court : one of strict interpretation of the constitution, the way founders intended to have it intepreted supposedly (something they fail to apply when it comes to the 2nd amendment especially – the founders only knew muskets when it was drafted, not the weapons we use today but anyway that's one of the many holes of this judicial philosophy) and one that says that the constitution is an evolving document that lays down some basic constitutional principles based on which, and the way our society evolves, judicial matters should be decided. It's a much deeper clash at work here than a simple popularity test of a certain issue.

    Every court, district, federal of appeals, state, is "imposing its will on people" if we take your interpretation under consideration. Upholding the constitution does not infringe anyone's rights, especially on cases that involve the rights of minorities. Conservatives may scream as long as they want but I believe that if a state votes to make public displays of religious belief illegal, they will go to the courts to defend their rights.

    If a circuit court and an appeals court decides negatively we have a split that needs to be remedied. There needs to be a judicial harmony, one only the SCOTUS can offer, we can't have different interpretations of the same law in different areas of the country. A law is unconstitutional or it isn't.

    Of course they can't say ME is unconstitutional, who said that ? But what's in effect the difference of having a court rule that a state has the right to ban same sex marriage ? None. That's why if a split occurs, SCOTUS needs to intervene.

    As for having ME in Kennedy's hands, the answer is simple : There is no other way. Every judicial procedure of such importance eventually reaches SCOTUS. If I and every other person could take it out of Kennedy's hands and have it established on more probable to uphold equality grounds, I would. But it's the only solution if we want a nationwide resolution of the issue.

    Denying cert may give ME to some states for an amount of time but as I told you a negative ruling will create the split and the court will take the case one way or another. It's impossible not to have rulings against ME on federal appeals level. That's why the only realistic solution is SCOTUS ruling. Is it a safe bet ? far from it. But it's the only way out.

  • 40. guitaristbl  |  September 30, 2014 at 11:32 am

    He may think of himself as whatever he wants, these recent rulings show otherwise imo.

  • 41. JayJonson  |  September 30, 2014 at 11:34 am

    I have no doubt that Kennedy will do the right thing. My fear is that Ginsburg and Breyer may retire. Breyer has been rumored to be eager to retire. Ginsburg seems vigorous now, but she has said that should she feel unable to do the heavy lifting she has been doing, she would retire. If a Republican is elected President, he or she will make marriage equality a litmus test for any appointment to SCOTUS. We can kiss goodbye to our dream of equal rights under the law for many years to come.

  • 42. Zack12  |  September 30, 2014 at 11:43 am

    Indeed, that is why we need them to rule sooner versus later.

  • 43. Zack12  |  September 30, 2014 at 11:44 am

    Kennedy is pretty much a Republican hack like the other four other then his treatment of same sex couples and criminal justice issues.
    Bush V Gore proved that.

  • 44. Zack12  |  September 30, 2014 at 11:49 am

    I don't like it being in Kennedy's hands either just due to the fact that while we would likely get marriage equality, it will be on narrow grounds.
    But we don't have much choice on that, do we?

  • 45. ebohlman  |  September 30, 2014 at 7:13 pm

    If a Republican is elected President, he or she will make marriage equality a litmus test for any appointment to SCOTUS.

    The earliest a Republican president could nominate, let alone have confirmed, a SCOTUS Justice would be halfway into the October 2016 term. If the SCOTUS doesn't rule this term, then all circuits will have ruled by the beginning of the next term and if there's a split, I simply cannot see the SCOTUS holding everything throughout that term. There's simply no way the issue will be unresolved by the next inauguration.

  • 46. Kizi 2  |  September 30, 2014 at 9:19 pm

    The article is very good, I like it very much.Here I learned a lot.

  • 47. JayJonson  |  October 1, 2014 at 6:42 am

    That may be true under the current composition of the Court, but should, say, Ginsburg retire, Republicans, even if they don't control the Senate, could very well filibuster any nominee Obama puts forward, leaving the Court with eight members until 2016. Under those circumstances, I think it possible, maybe even likely, that SCOTUS would indeed hold all ME cases until 2016. The Court would not like to hear a case of such importance without a full complement. For this reason, in the 2012-2013 term the Court denied cert to some DOMA cases because Justice Kagan said she would recuse herself in any cases she had been involved with as Solicitor General. Thus, they chose Windsor, a much more recent case, which she had had nothing to do with.

  • 48. Ragavendran  |  October 1, 2014 at 8:24 am

    But also consider that if a new circuit split persuades the Court to act, and there are just 8 Justices (with RATS intact), the Court could end up sending down a 4-4 non-binding-nationwide ruling, effectively upholding one of the (positive) lower circuit court rulings. It's not at all ideal though, and could be considered as a useless ruling (procedurally). I'm not even sure if written opinions are allowed in such situations – if so, we could at least learn for certain where the Justices (esp. Kennedy) stand.

    And by the way, if the composition of the court swung the other way (with one of the RATS being eradicated), most would-be 5-4 decisions will become useless 4-4 ties (except perhaps the ME cases) and so, SCOTUS terms under such a composition are likely to see a huge dip in productivity, and circuit splits will remain unresolved.

  • 49. JayJonson  |  October 1, 2014 at 8:47 am

    I think a 4-4 ruling would be worse than nothing at all. While it would uphold the (positive) circuit court rulings, it would lack any precedential value and, I think, actually encourage unfriendly circuits to uphold state bans on same-sex marriage. After all, if we appeal those, the result would be a 4-4 SCOTUS ruling upholding them.

  • 50. Ragavendran  |  October 1, 2014 at 8:58 am

    Hmm… I don't think it can be worse than nothing. Unfriendly circuits will not be any more likely to uphold state bans after a 4-4 split, given such a Supreme Court composition, where they'll already know that there is no chance of being overturned. It made me smile to think of two 4-4 rulings in back-to-back terms, one upholding ME and one not :)

  • 51. JayJonson  |  October 1, 2014 at 9:07 am

    Yes, dueling 4-4 rulings would be amusing. I think it would be worse because it would solidify the divisions in the country with no way of resolving them and each side being able to claim the imprimatur of a SCOTUS ruling.

    Let's hope that SCOTUS acts quickly and makes the right ruling asap.

  • 52. Randolph_Finder  |  October 1, 2014 at 9:37 am

    ITYM, all circuits that need to rule. 1st and 2nd Circuit are all ME states. Of the other 9, I wonder which one will be last in this case.

  • 53. BenG1980  |  October 1, 2014 at 9:51 am

    The First Circuit also includes Puerto Rico which does not currently have ME, though it's obviously not a state. (Similarly, the only jurisdiction in the Third Circuit currently without ME is the U.S. Virgin Islands.) You're right about the Second Circuit.

  • 54. Randolph_Finder  |  October 1, 2014 at 10:17 am

    Granted. And there is still no district court decision in PR that is ready for appeal. (and I can't find any cases at all in the USVI.)

  • 55. ebohlman  |  October 1, 2014 at 12:08 pm

    Efforts in the USVI seem to be focused on legislation rather than litigation.

  • 56. guitaristbl  |  October 1, 2014 at 1:08 pm

    You can rule the 3rd out as well I think, the Penn case, appealed by that clerk goes nowhere obviously. And I doubt the court would wait for the Puerto Rico decision anyway. Not that it would hurt the case of ME. The first 3 circuits should rule in favour of ME given their compositions and the liberal tendencies of the states they include so its unfortunate they are just spectators mostly to this whole thing. Let's not forget that Windsor went through the 2nd circuit first and DOMA was struck down there before reaching SCOTUS.

  • 57. brooklyn11217  |  October 1, 2014 at 1:24 pm

    There are some reports via Twitter that SCOTUS will issue orders tomorrow at 9:30, but I have not been able to find a source/link/proof of this….anybody else?

  • 58. dingomanusa  |  October 1, 2014 at 2:37 pm

    Where are you getting these reports do you have a link to these reports?

  • 59. brooklyn11217  |  October 1, 2014 at 3:03 pm

    <blockquote class="twitter-tweet" lang="en">MT @howappealing #SCOTUS orders coming 9:30 AM ET Thursday, reports @rickhasen at his &quot;Election Law Blog.&quot; http://t.co/Qarmwfu8Rb&mdash; freedomtomarry (@freedomtomarry) October 1, 2014
    <script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script>

  • 60. brooklyn11217  |  October 1, 2014 at 3:06 pm

    Sorry, that didn't work out well.. @howappealing and @freedomtomarry and @chrisjohnson82 are all reporting on this one post from @rickhasen

    His tweet links to his blog…he cites no source (call to clerk, or link). I have tweeted to him and have gotten no response.

    Scotusblog.com has not reported on this, so I remain skeptical. I guess we will know tomorrow morning.

  • 61. brooklyn11217  |  October 2, 2014 at 4:49 am

    Still no confirmation. @rickhasen tweeted to some one else who questioned him: "from what I heard." So, we will know later this morning……

  • 62. DaveM_OH  |  October 2, 2014 at 5:34 am

    SCOTUSBlog has also removed their "Editor's Note" in which they said they didn't expect Orders. So I'd read that as circumstantial confirmation.

  • 63. brooklyn11217  |  October 2, 2014 at 6:10 am

    Good point….but they didn't say they DID expect anything. Buzzfeed ace reporter Chris Geidner just tweeted that he is on his way to SCOTUS now to check on this.

  • 64. DaveM_OH  |  October 2, 2014 at 6:25 am

    Who is ready for some #SCOTUS cert grants?&mdash; Rick Hasen (@rickhasen) October 2, 2014

    Me! Me!

    Also, SCOTUSblog:

    Live blog
    By Kali Borkoskion Oct 2, 2014 at 9:24 am

    Although the Court has not yet made any announcement regarding when it will release any orders from Monday’s Conference, we have made a decision to be prepared in case any orders are released this morning.

  • 65. brooklyn11217  |  October 2, 2014 at 6:33 am

    I came here just to report on the live blog……you beat me to it. Thanks! Time to go back to that tab now. 😉

  • 66. DaveM_OH  |  October 2, 2014 at 6:33 am

    No orders on any of the same-sex marriage cases.
    by Amy Howe 9:32 AM
    Comment – See more at: http://live.scotusblog.com/Event/Live_blog_of_Lon

  • 67. brooklyn11217  |  October 2, 2014 at 6:35 am

    No marriage case orders, apparently.

  • 68. DaveM_OH  |  October 2, 2014 at 6:38 am

    Nope. Now, there aren't any *denials* in this order set, only grants. Monday there will be a very long Orders list to start the new term with all the denials.

    And to add, from Amy on SCOTUSblog:

    "So to clarify, the Court did not act on any of the same-sex marriage cases. This could mean a couple of different things. It could mean that the petitions will be denied when the Court issues the rest of the orders from Monday's conference — probably on Monday morning at 9:30 a.m. It could also mean that the Justices are taking more time to look at the cases: there are seven different petitions, involving a couple of different issues and different stances by state officials. Even if there are four votes to take up the issue, they may need additional time to figure out which case(s) and which question(s). The next conference is scheduled for next Friday, October 10, so if review is not denied on Monday, October 6, we likely would not hear anything until Tuesday, October 14 (because October 13 is a federal holiday)."
    by Amy Howe 9:43 AM

  • 69. TDGrove  |  October 2, 2014 at 6:51 am

    Just speculation, but if the ME cases do not appear on the "denied" list on Monday, would that not point to a high likelihood that one will be taken this term? At the very least, it will give us geeks something to do next Monday.

  • 70. DaveM_OH  |  October 2, 2014 at 7:03 am

    It would point to a relist to be heard at the Oct 10 Conference. I believe a grant to be a high likelihood anyway, so I don't think a relist really says that much – that said, if the cases are *not* relisted for the Oct 10 conference (and not denied on Monday – watch the Dockets), it points directly at Judge Sutton to write his opinion.

  • 71. bayareajohn  |  April 15, 2015 at 8:19 pm

    SPAM

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