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A primer on the Supreme Court’s process, and the likely trajectory of the marriage cases

LGBT Legal Cases Marriage equality Marriage Equality Trials

As we covered last week, cases from Utah, Oklahoma, and Virginia are headed to the Supreme Court: the Justices will be asked to accept the cases for review in this upcoming term. With that news in mind, and with several more cases making their way through the appeals courts in the coming weeks, this post is intended as a primer on how the process will unfold in the courts.

After the decisions in the lower courts (the Tenth Circuit in the Oklahoma and Utah cases, and the Fourth Circuit in the Virginia case) the losing parties announced that they would seek Supreme Court review of those appeals courts’ decisions striking down their respective state bans.

None of those petitions have been filed as of this writing, rather, the announcement was made that they would be presented to the Court within the time-frame for filing.

Under the Supreme Court’s rules, a party has 90 days from the time judgment is entered to file a petition for certiorari in the Supreme Court. A petition for certiorari, or “cert petition”, is a request that the Justices take up the case. The Supreme Court’s docket is mostly discretionary – almost every case they hear comes to them via a cert petition, and they can accept or deny those petitions.

The Court receives about 7,000 cert petitions per term, and they grant about 70.

Usually, but not always, the Court looks to whether there’s a “circuit split” on the issue raised in the petition. In other words, they are interested in whether appeals courts differ on the issue, because they can step in and resolve the conflict rather than simply correcting errors in lower courts’ decisions.

The Court also looks to, as their rules suggest, whether “a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court[.]”

Most of the petitions in the marriage cases will likely argue that it’s an important issue, and it should ultimately be decided by the Justices, rather than by lower court judges. There’s a separate argument that a circuit split already exists, because the Eighth Circuit issued a ruling in 2006 on the question of marriage; however, there’s a dispute over whether weight should be given to that decision after the Supreme Court’s decision in United States v. Windsor.

Once the petition is filed, the parties on the other side of the case can file a response to the petition. That’s usually, but not always, an argument that the Court should decline to review the petition.

It takes four Justices to grant a petition for review. The Court could take any or none of the current cases, or the ones likely to reach the Court from the Sixth, Seventh and Ninth Circuits.

If the Court declines to review a petition, the lower court’s decision remains in effect, but only in that circuit. So, for example, if the Court denies the petition in Bostic, the Virginia case, the Fourth Circuit’s decision striking down Virginia’s ban remains in effect, and the decision will affect all other states within the Fourth Circuit’s jurisdiction.

If the Court accepts a petition, the ultimate outcome would be essentially on hold until next year. There is no timeline for the Court to make a decision on whether to hear a case. They can essentially hold onto a petition as long as they want. It doesn’t seem likely they’d hold petitions in all of these marriage cases, though.

The Court’s term begins in October and ends by July 4, by tradition. October’s calendar has already been released, and SCOTUSBlog has reported previously that enough cases have been accepted to fill out the calendar until December. But they’ve also noted several times that there is still a chance the Court will take up a marriage case. April is usually the last month for arguments; after that, the remaining opinions are worked on until the end of June.

Arguments in the Prop 8 and DOMA cases took place in late March.

A decision in a marriage case, if the Court grants review in a case for the October ’14 term, would probably be released near the end of June. There will likely be dissents, and the case could take until the very end of the term to resolve.

But again, there’s no guarantee the Court will take up a case, although as Justice Ginsburg said recently, there’s a sense that the Court wouldn’t duck the issue if a case is before them and they’re able to reach the merits.

Importantly, the choice to seek review at this stage means that the process will be shortened, at least compared to the route the cases could have taken. That’s because the losing parties in these cases could have asked their respective appeals courts to rehear the decision with the full set of judges in that court. That process, called rehearing en banc, would have taken months: a vote would have to be taken on whether the judges want to rehear the case. And then, if they accepted a case for rehearing en banc, their previous decision would be wiped out, and would be replaced by the eventual decision from the en banc court.

Going straight to the Supreme Court means that they could potentially take a case in the upcoming term, rather than the October ’15 term. That said, it’s not a guarantee that they’ll hear a case this term. Even Justice Ginsburg’s comments had a disclaimer that the Court would take a case that was “properly before” it.

Given the Court’s rules, and the timing of the appeals court decisions, petitions from the Fourth and Tenth Circuits should be filed by mid-October.

It’s unclear when the Sixth, Seventh, and Ninth Circuits will decide the cases before them. There are eleven cases in those courts.

The Fifth Circuit will hear an appeal in the Texas marriage case, but no argument date has been set.

EqualityOnTrial will be at the Sixth Circuit hearing on Wednesday, and we’ll provide coverage as soon as the arguments are finished.

50 Comments

  • 1. MichaelGrabow  |  August 4, 2014 at 10:21 am

    FLORIDA: State Judge Expected To Order Out-Of-State Marriage Recognition
    http://www.orlandosentinel.com/news/local/breakin

  • 2. Terence  |  August 4, 2014 at 11:21 am

    NBC Miami reports that the ban has now been ruled unconstitutional.
    http://www.nbcmiami.com/news/local/Broward-Judge-

  • 3. Bruno71  |  August 4, 2014 at 12:45 pm

    If I'm not mistaken, I think you're reading the plaintiff's motion for declaratory judgment and injunctive relief. I haven't found a link to the actual ruling yet.

  • 4. matt87  |  August 4, 2014 at 10:56 am

    The 9th Circuit will likely be the first to rule even though arguments are a month from now. Its average decision time is 39 days. Next, the 6th Circuit will probably rule late October, its average turnaround time being 81 days. Finally the 7th will rule in December with an average decision time of 99 days.

  • 5. ranjitbahadur0  |  August 4, 2014 at 11:47 am

    The 9th shall also apply heightened scrutiny, as has been discussed before, no state has yet offered any justification that can survive this (none have survived rational basis either, but that's besides the point). This will likely speed the process along for them.
    As such, Nevada and Oregon have already abandoned defense of their bans, only Idaho is still stubbornly pursuing it.

    Is it possible that marriage equality supporters (plaintiffs in Nevada, defendants in Idaho) can file for summary judgement and further speed the process along ? I don't know if that can even be done at the appelate level or if a whole hearing etc. is required.

  • 6. Japrisot  |  August 4, 2014 at 12:41 pm

    The parties will brief the questions on appeal in a way that is pretty similar to a motion for summary judgment in the lower courts, but this doesn't expedite appellate review.

  • 7. matt87  |  August 7, 2014 at 10:16 pm

    All appeals are summary judgment because facts are never disputed on appeal except in extreme circumstances.

  • 8. Bruno71  |  August 4, 2014 at 12:01 pm

    If this all goes as you're laying out here, will any of these cases, under normal procedures, be able to make it onto SCOTUS' docket alongside the 4th and 10th rulings for a spring (or summer) 2015 ruling?

  • 9. matt87  |  August 7, 2014 at 10:17 pm

    Of course, but if any of those cases are already calendared then the chances are slimmer.

  • 10. Bruno71  |  August 4, 2014 at 11:43 am

    Decision stayed, of course:
    http://www.wtsp.com/story/news/local/florida/2014

  • 11. Fledge01  |  August 4, 2014 at 12:03 pm

    Is there a deadline for SCOTUS to accept a case? Can they accept a case after the term has started? I still think SCOTUS will NOT take a case this term, especially if there is no split yet this term. Even if there is never a split, they may take a case next year, but these cases are so fresh, I think SCOTUS will want all the Circuits to have a chance to weigh in before they take one from anybody.

  • 12. Bruno71  |  August 4, 2014 at 12:06 pm

    Ginsburg said she thinks they'll basically take one if it's properly before them, and was estimating 2016 or 2015. They'll have a case before them properly in the next couple of months, so it'd be hard to see them tabling these cases past next term. They can relist cases indefinitely, or put them on hold, but what would be the rationale, other than "it's too soon"?

  • 13. andrewofca  |  August 4, 2014 at 12:35 pm

    I tend to agree. I think they'll tackle ME this upcoming term. The current court doesn't seem shy about granting cert to very high-profile cases. If enough liberal justices don't vote to grant cert, the conservative justices will, and vice versa.

    Although denying cert and letting the rulings play out at the circuit level isn't a terrible option either. This would be MUCH better than relisting them indefinitely.

  • 14. Bruno71  |  August 4, 2014 at 12:39 pm

    It would be better for us, but Ginsburg's comments seem to suggest that she at least will vote to grant cert. That doesn't mean cert can't be denied…the conservative justices might rather do it that way than decide nationally, and there's no telling how many of the other 4 justices would vote for cert. But it seems much less likely after her comments that cert will be denied on any ME cases properly before them this time.

  • 15. Bruno71  |  August 4, 2014 at 1:13 pm

    What is the likelihood that SCOTUS could relist cases pending rulings in the 6th, 7th, and 9th Circuits? i.e. it's December and let's say 1 or more of those rulings haven't come yet, is it at all likely they'd want to wait until they all come in, thus delaying things indefinitely?

  • 16. andrewofca  |  August 4, 2014 at 1:44 pm

    oh please no, I hope they don't do that 😉 I suppose they could in theory. But in practice, this would be tying themselves to the scheduling whims of the lower circuits for no good reasons.

    The reverse would be more likely, i.e. if the Supreme Court grants cert for the 4th or 10th, the lower circuits would delay publishing their rulings pending the outcome.

  • 17. KahuBill  |  August 4, 2014 at 1:47 pm

    I would imagine that at some point in this process, if SCOTUS doesn't grant cert with reasonable dispatch, "gay means stay" will become untenable and some circuit will do a proper four-part analysis of continuing the stay and lift it.

  • 18. Bruno71  |  August 4, 2014 at 1:53 pm

    It's interesting that Ginsburg mentioned 2016 first . It makes me wonder how she thinks it could possibly play out that way, given the current playing field.

  • 19. tornado163  |  August 4, 2014 at 2:05 pm

    I wouldn't read too much into that. Ginsburg probably said 2016 because she might retire in 2016, once she reaches the same age Louis Brandeis did when he retired.

  • 20. Ragavendran  |  August 8, 2014 at 8:06 am

    Maybe she has faith in the Fifth Circuit to rule against us next year, creating the circuit split for a 2016 decision, even if all other circuits agree and SCOTUS denies cert on each of those appeals. And if we get a circuit split sooner, then, oh well, 2015 it is.

  • 21. ranjitbahadur0  |  August 4, 2014 at 1:50 pm

    I know that
    (a) the SCOTUS can do whatever the hell they want; and
    (b) they are sticklers for following procedure,

    but after basically constructing the Stay-for-Gay paradigm and continually propogating it by granting stays when the circuit courts denied them, it would be unconscionable to keep dragging their feet by either denying cert or, worse, dragging their feet indefinitely before granting cert.

  • 22. StraightDave  |  August 4, 2014 at 2:25 pm

    But denying cert will lift a stay, so that's not such a bad thing as long as they do it within a reasonable time, like end of 2014. Of course, that would make the stay smell bogus in the end but they've pretty much painted themselves into a shit-or-get-off-the-pot corner. The 3 current appeals plus the 10+ more in the pipeline have to go somewhere, presumably by next June.

  • 23. andrewofca  |  August 4, 2014 at 7:24 pm

    Denying cert is a much better option

  • 24. Randolph_Finder  |  August 4, 2014 at 1:17 pm

    The 2nd Circult is New York, Connecticut and Vermont. The Supremes are going to be waiting a *long* time for them to weigh in. (1st has Puerto Rico, 3rd has Virgin Islands)

  • 25. Eric  |  August 4, 2014 at 1:47 pm

    Have there been other situations where SCOTUS has issued stays, then deferred cert into the following term?

  • 26. DrPatrick1  |  August 4, 2014 at 5:10 pm

    If SCOTUS denies cert, in any appeal, it would effectively negate the NE precedent, as well as Baker. Never again will anyone be able to credibly cite them to deny us rights. Indeed, a denial of cert might be the fastest way to get equality nationwide (relying on the remaining court cases to conclude granting equality). It would be extremely unlikely for a non equality state to be granted a stay once SCOTUS denies cert in any of the other cases.

    Perhaps, RBG mentioned. 2016 thinking they might deny cert until/unless there is a new circuit split… Perhaps I am simply too optimistic…

  • 27. sfbob  |  August 4, 2014 at 12:55 pm

    I pulled a comment I had posted regarding the Florida court's decision when I realized I was quoting the plaintiff's brief. Has anyone got a link to the ruling?

  • 28. Bruno71  |  August 4, 2014 at 2:39 pm

    Here it is
    http://media.miamiherald.com/smedia/2014/08/04/15

  • 29. sfbob  |  August 4, 2014 at 3:57 pm

    Thanks Bruno. Sad to say this is not one of the better-written opinions. There are some infelicities of expression (perhaps just omitted words) but there is also at least one instance where the judge has cited Baehr vs Lewin as a federal court decision when it was in fact a state court decision. I certainly am not saying that invalidates the judge's ruling but it does present a weakness.

  • 30. Bruno71  |  August 4, 2014 at 4:21 pm

    There was a line that said Windsor addressed out of state marriages that looked pretty suspect too.

  • 31. FredDorner  |  August 4, 2014 at 7:15 pm

    I liked his concluding paragraph but otherwise I agree with sfbob – it's not any better written than Judge Piazza's ruling in Arkansas.

  • 32. Margo Schulter  |  August 4, 2014 at 1:46 pm

    The idea of waiting for all applicable circuits to weigh in might be a practical way of following the “let it percolate” sentiment expressed in the 2013 oral arguments — while letting marriage equality go into effect piecemeal in many or most of the circuits, and thus making the eventual SCOTUS decision more a question of ratifying a fait accompli.

    Judge Ginsburg seems to be hinting, with her remarks on how fast public opinion is changing, that her Roe v. Wade anxieties are reduced. But allowing another year or so for both the decisions and their implementation to become everyday reality might further reduce any potential backlash against the Court.

  • 33. Margo Schulter  |  August 4, 2014 at 1:48 pm

    That’s Justice Ginsburg, of course — who was indeed Judge Ginsburg during her 13 years on the District of Columbia Circuit.

  • 34. JayJonson  |  August 4, 2014 at 3:07 pm

    New York Times has an interesting article that contrasts Justices Ginsburg and Kennedy. http://www.nytimes.com/2014/08/05/us/as-gays-prev

  • 35. andrewofca  |  August 4, 2014 at 7:22 pm

    thanks for sharing… great read

  • 36. Bruno71  |  August 4, 2014 at 3:19 pm

    Santai-Gaffney smacked down yet another time. No arms, no legs, but 'tis just a flesh wound?
    http://www.lgbtqnation.com/2014/08/third-circuit-

  • 37. Jen_in_MI  |  August 4, 2014 at 7:43 pm

    She's being represented by ADF. They will never give up until every possible smackdown has been sought and granted – I read an article earlier (sorry no link) basically stating she's going back to SCOTUS. It's sad how hate and bigotry can lead a person like her to go to ridiculous lengths to protect her own privilege and prejudices. I think she should be fired since she has such a problem simply doing her job!

  • 38. Eric  |  August 4, 2014 at 3:32 pm

    They aren't activist judges, SCOTUS can only rule on matters properly before the court. State marriage discrimination has not properly been before the court as of yet.

  • 39. Jen_in_MI  |  August 4, 2014 at 7:46 pm

    Um, I beg to differ – SCOTUS *did* install W as POTUS although he lost the election. Seems like the very definition of "activist jurists" to me. JMO.

  • 40. SoCal_Dave  |  August 5, 2014 at 10:51 am

    Agree, Jen, IMO they inserted themselves in that case inappropriately. They also seem to have no problem 'actively' finding new rights for corporations (Citizens United, Hobby Lobby).
    Affirming existing fundamental rights for LGBT human beings, not so much.

  • 41. JayJonson  |  August 8, 2014 at 6:23 am

    The conservatives on the court are very activist. They had no compunction in stepping into the separation of powers case involving recess appointments. They even went so far as to arbitrarily set a minimum number of days when the Senate is out of session before a President can act. With absolutely no warrant from the Constitution. They are very ends-oriented.

  • 42. Bruno71  |  August 4, 2014 at 3:36 pm

    Believe me, her motion to intervene in the case has gone, and is going, nowhere. If SCOTUS rules against us, then perhaps marriage in PA may be in jeopardy (up to interpretation of the ruling), but it'll have nothing to do with Santai-Gaffney. And even then, I doubt they'd negate the marriages performed in the interim. I wouldn't describe it as a limbo; it's more of an area where the current status quo is not 100% safe.

  • 43. scream4ever  |  August 4, 2014 at 10:10 pm

    The same could be said for Oregon, but I'm not worried.

  • 44. TheRevTimmy  |  August 5, 2014 at 7:06 am

    At this time, Tuesday, August 5, 2014, Pennsylvania is not yet free for us to be permanently married. We’re more like the many unfree states than we want to accept.

    Denial is easier? Not for some of us temporarily-married couples trapped in this legal-limbo who need to create permanent and vital legal protections for ourselves.

    There exists no ‘permanent’ marriage equality in Pennsylvania until the U.S. Supreme court decides (again) to reject a challenge to the overturning of PA’s ban that happened on May 21 when Gov. Corbett dropped his appeal.

    This challenger filed her appeal at the last minute during the 30 day appeal period and her case is not yet finally resolved in the U.S. Supreme Court.

    Should the U.S. Supreme Court rule for ‘states rights’ to ban our marriages, which they have not yet ruled upon, then our PA marriages would be null and void. This outcome won’t be known for years, so we are in legal limbo in PA until then.

    Speculation about how the Supreme Court would rule is just that, speculation. So far they have failed in their responsibility to the U.S. Constitution, to rule that marriage equality trumps states rights to discriminate.

    The Supreme Court has had several opportunities to strike down states rights to discriminate in this year after the Windsor victory, yet SCOTUS has failed us each time.

    It’s irrational to assume SCOTUS would rule for marriage equality in the end. After all, they’re the same judges on the same court that, so far, refuses to rule FOR marriage equality nationwide and refuses to rule AGAINST states rights to discriminate.

  • 45. TomPHL  |  August 5, 2014 at 10:25 am

    I think you are being unduly alarmed. At this time our marriages are legal in the state & the nation and it is not certain they would be null and void even if the SCOTUS upholds state bans–possible but not certain. Santai-Gaffney has not had any success so far and it is likely she will have none in the future. I do think Alito's rejection of her stay request is a good augury of a future rejection of her request for cert. There is also the likelihood that the PA state DOMA is unconstitutional under the state constitution; this may have played a part in Corbett's decision not to appeal. What cases since Windsor have been before the SCOTUS which might have led to a ME ruling?

  • 46. ragefirewolf  |  August 8, 2014 at 5:59 am

    I'm not sure where these "multiple SCOTUS failures" are that you are talking about. They have only encountered a single state ban case, and that was Prop 8, of which they rightfully rejected reviewing the merits because of proponents' lack of standing.

    Also, Windsor, for the sake of judicial restraint, only applied to the federal gov't as they were the defendants in that case and the case was about federal law. In that ruling, if you read or were aware of Justice Kennedy's decision, it was about federalism, yes – in that states are the ones to regulate marriage and DOMA created a definition to federal recognition of marriage for the first time, where they had none before – yet, while it's up to states to regulate marriage, that regulation cannot violate constitutionally protected rights.

    It's good to have a healthy sense of caution about this stuff, but I believe you are being too cynical. That cynicism does not line up with the reality of what we have achieved so far.

  • 47. JayJonson  |  August 8, 2014 at 6:27 am

    I agree with ragefirewolf on this point. We have every reason to be optimistic that SCOTUS will do the right thing if they grant cert quickly to the right case. My worry is that one of the Justices on our side will get ill or decided to retire before the case reaches them. That is why time is of the essence.

  • 48. ragefirewolf  |  August 8, 2014 at 6:54 am

    Yes, that's my worry as well

  • 49. Rick55845  |  August 5, 2014 at 2:58 pm

    I have a question that I suspect has been answered before, but I can't find it, if so.

    If SCOTUS denies cert to Bostic (4th Circuit), Kitchen and/or Bishop (both 10th Circuit), my understanding is that ME becomes the law in the states within those circuits, since the Circuit Courts of Appeal in those states have ruled that the same-sex marriage and recognition bans in the cases before them were unconstitutional, upholding the lower court rulings.

    Now what happens if another Court of Appeals rules the other way? Say the 5th overrules the lower courts and affirms the right of the states to institute marriage equality bans? Now there is a Circuit split. Does SCOTUS have to resolve it? Can they allow different outcomes in the various Circuits?

    Another question, and the one I'm most interested in… If, in the above scenario, SCOTUS were to accept the case from the Court of Appeals that ruled adversely (to us) after denying cert to one of the previous cases, and if they affirmed that Circuit's ruling, would that change the outcome in the states that reside within the jurisdiction of the Circuit Courts where they previously denied cert (in this example, the 10th and the 4th).

    Also, would there be any bar to states in the 10th and 4th from re-enacting new bans?

  • 50. Equality On TrialSupreme &hellip  |  August 22, 2014 at 11:02 am

    […] we’ve noted before, it takes four votes to grant review. In addition:If the Court accepts a petition, the ultimate […]

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