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Ruth Bader Ginsburg Hints at Marriage Decision


By Matt Baume

A surprising reveal this week from Supreme Court Justice Ruth Bader Ginsberg about the court’s plans for taking up a marriage case — or maybe not taking up any. An Arkansas clerk breaks ranks with top state officials, declaring for the first time that the state’s marriage ban is unconstitutional. Plus: numerous states freeze their marriage lawsuits while they wait for a Supreme Court ruling.

Justice Ginsberg has hinted that the Supreme Court might not be ready to take a marriage case yet. In a Q&A last week, she observed that the cases before the court so far are generally all in agreement that marriage bans are unconstitutional. As a result, she said, the justices may wait for a ruling that upholds a marriage ban, so that they’ll have a stronger dispute to settle. If they do decide to wait, a key ruling could come soon from the Sixth Circuit. Judges there could rule any day now on cases in Kentucky, Michigan, Ohio and Tennessee. It’s anyone’s guess how the Sixth Circuit will rule.

In the mean time, more and more states are lining up to wait for a Supreme Court decision. Last week the Tenth Circuit paused a case in Colorado until there’s a final decision in neighboring Utah and Oklahoma. A judge in West Virginia halted a lawsuit there, pending an outcome in AFER Virginia case. Wisconsin and Indiana are also awaiting a Supreme Court ruling, and judges in those states ruled last week that that marriages cannot begin until the Supreme Court issues a decision in those cases.

But other lawsuits are still moving ahead. Couples in Wisconsin have filed a new suit, seeking recognition of licenses that the state issued during a brief window when marriages were allowed. Florida Attorney General Pam Bondi has filed appeals of four recent rulings that overturned marriage bans. And Arkansas state officials have filed a new brief, appealing a decision by a lower court that the state’s marriage ban is unconstitutional. But in an unusual move, Pulaski County Clerk Larry Crane has filed a brief of his own, adopting an opposite position. Even though Crane is one of the named defendants in the case, his new brief argues that the court should rule in the plaintiff’s favor and overturn the ban.

A new survey from Elon University shows support for marriage continues to climb in North Carolina. Public opinion is roughly tied, with support at 45 percent to 43 percent opposed. And three new studies from the Williams Institute show the economic benefit of marriage equality: in Georgia, it would add $78.8 million to the state economy. In Missouri, $36 million. And in Wyoming, $2.4 million.


  • 1. Dr. Z  |  September 22, 2014 at 12:30 pm

    If the Sixth rules against us as expected, how might that influence which case SCOTUS grants cert?

  • 2. ragefirewolf  |  September 22, 2014 at 12:35 pm

    They might consider a fresh Circuit split to make it more of a controversy for them to resolve, but I personally don't understand why Bruning isn't adequate to them for that purpose nor do I understand why they would stay everything just to let the decisions stand…

  • 3. Eric  |  September 22, 2014 at 1:21 pm

    Brunning relied on Baker, which is a pretty poor precedent, and never made it to SCOTUS. SCOTUS could wait until a new 8th Circuit case comes along before fixing the mess in that circuit.

    Has the 8th or any district courts relied on Brunning?

  • 4. Ragavendran  |  September 22, 2014 at 8:18 pm

    Is it a coincidence that as of now, the Eighth Circuit is the only federal appeals court (apart from the first three where all states have ME) that doesn't have a pending marriage case? Or did Bruning play a significant part in slowing things down in federal courts in the Eighth Circuit?

  • 5. Zack12  |  September 22, 2014 at 9:17 pm

    I imagine Bruning played a very large part in why our side has been leery to file lawsuits in states covered by the 8th.
    Also,8 out of the 11 active judges on the circuit are Republicans and six out of the 7 senior judges are Republicans as well.
    And there aren't moderate ones to be found on it. The ones from the St. Ronnie era and George Bush Sr are bad enough but the Federalist Society members Bush Jr put on there pretty much ensures we have no shot in the 8th.

  • 6. Jen_in_MI  |  September 22, 2014 at 1:43 pm


  • 7. ranjitbahadur0  |  September 22, 2014 at 2:17 pm

    I think what really happened was that no one, including SCOTUS counted on just HOW many marriage bans would be struck down in one year.
    After all, the rate of progress before this has been 1 state every 2-3 years.

    Waaaaay back when, when the Utah decision was handed down, it was pretty clear that Utah would fight it tooth and nail all the way to the bitter end and SCOTUS granted a stay (without explanation) thinking it wouldn't be a big deal.

    But having established that precedent they they continued to grant stays (again, without explanation) in the next decisions to come down basically creating gay==stay.
    It probably has something to do with them not wanting to backtrack in Kitchen.

    What I would like to see them do is to now swiftly either grant cert (or deny it) so that it can be resolved one way or another. Continuing to relist the cases basically means that the whole (judicial) process has ground to a halt.

  • 8. Eric  |  September 22, 2014 at 2:26 pm

    It will be interesting in a few years to hear from the justices why the stays were issued. Stays aren't issued based on precedence, but on the specifics of each case before the court.

  • 9. JayJonson  |  September 22, 2014 at 12:38 pm

    Good question. I think SCOTUS could still choose any of the seven cases already before them or just wait for an appeal in the cases decided by the Sixth Circuit. They could choose several cases as they did in the school integration cases now known as Brown v. Bd of Education of Topeka, Kansas. But I am just speculating. Perhaps Raga or Retired Lawyer will have a more informed answer.

  • 10. Mike_Baltimore  |  September 22, 2014 at 2:36 pm

    Personally, I think the WI case presents the best case for SCOTUS. At issue is in-state and out-of-state marriages, and adoption (probably the three questions [but not the only] that are of most concern to people).

    Most of the other cases (including the IN case [several combined into one] which is my sentimental favorite because I grew up in IN) also have questions about in-state and out-of-state marriages, but not so much about adoptions.

    That, though, is my personal opinion, but SCOTUS probably thinks differently.

    I think the adoption component of the WI case makes it stronger – WI allows one party adoption, but only opposite sex, married, couples can adopt (as a couple). In Indiana, same-sex couples can adopt, but then (just like in WI and the other states appealing to SCOTUS) the state says they can't marry in- or out-of-state and have that marriage recognized by the state. The WI case (IMO) more directly gets to the question of adoption than the other cases now before SCOTUS.

  • 11. Zack12  |  September 22, 2014 at 2:38 pm

    The WI one has a strong case but so does the ban out of VA which forbids even private contracts between same sex couples.

  • 12. Dr. Z  |  September 22, 2014 at 4:27 pm

    The UT and IN cases are particularly interesting because both states permit first cousins to marry only if they cannot reproduce. That makes complete hash of the "responsible procration" argument. The other nice thing about both IN and WI is that they are Posner opinions. Posner has a running feud with Scalia that would raise the stakes even higher (for their fans, at ant rate.)

    Much has been made of the various lawyers in the case – but could the decision to grant cert turn more on who wrote the opinion?

    Poetic as it would be, I don't think much of the argument that it would be nice for SCOTUS to take the VA case because of Loving. That and $1.50 buys you coffee.

  • 13. DrPatrick1  |  September 22, 2014 at 9:30 pm

    We want a broad ruling ensuring equality across a broad range of issues.

    SCOTUS wants a clean simple case where it can decide one issue and move on. My money is on the UT case.

    There is a tiny part of me that thinks they will keep delisting until the 6th rules, then if we lose there they will grant cert on one of the cases and put all others on hold. If we win the 6th, my hope is the jig is up, and they deny cert in all pending cases and the stays are lifted!

  • 14. Zack12  |  September 22, 2014 at 9:50 pm

    The 6th makes me nervous only because of the cases being heard, only MI dealt with bans on in and out of state marriages.
    While it would be a partial victory to see SCOTUS strike down bans that ensure marriages can't be nullified if you move across state lines, to allow states to continue to ban same sex marriage would still leave a bitter taste in my mouth.
    Many couples due to age or monetary reasons can't afford to make a trip that can easily take up to 600 miles or more and cost time and money.
    So to only deliver a partial ruling will still be a blow to so many couples.

  • 15. DrPatrick1  |  September 22, 2014 at 9:58 pm

    Exactly, so instead of hoping for the adoption, out of state marriage issue, etc, I think it is a promising sign if they pic a clean (no standing issues with a state official seeking cert not an intervenor) marriage recognition case. If they do, the adoption and recognition cases get decided, and almost certainly in our favor. If they grant cert in an adoption or recognition case, look for a narrow ruling in our favor, but does not settle the central issue. I think the case they pick will be very telling about how they will decide.

  • 16. Zack12  |  September 22, 2014 at 10:13 pm

    Indeed.. if they pick an adoption case, it will be a narrow ruling.
    If not, then it will be a full sweep.
    Personally I think they will do a broad one, no reason to punt on this when it would only come back to them in another year or so.

  • 17. DrPatrick1  |  September 22, 2014 at 10:22 pm

    Oh, I see the confusion. When I said we wanted a broad ruling, I meant it is appealing for them to take a case with several issues and clearly rule in our favor in each instance. Instead, SCOTUS seems to prefer a narrow case with which it can issue a narrow opinion. In that sense, I think a narrow case involving a marriage ban as it's only issue will force SCOTUS to answer the core issue, and thus a narrow ruling with broad implications.

    Contrast that with the MI case, it is easy to see this SCOTUS rule in favor of adoption, but sidestep the license issue. Thus a narrow ruling with more limited reach.

    If SCOTUS picks a multipronged case, look for the dodge, if they pick a more direct marriage ban case, look to win the whole kit and kaboodle

  • 18. Ragavendran  |  September 22, 2014 at 10:38 pm

    Another way for them to dodge (and I'm not saying this is the way they'll go – just a possibility) is to pick one of the Tenth or Fourth Circuit cases. Then, they could decline to locate a right to marry a person of the same sex within the fundamental right to marriage, and remand to the Court of Appeals to figure out an equal protection angle, like the Seventh did. This would only be a partial loss for us, and buy SCOTUS more time if they wanted it for some reason. (The cost of this dodge for SCOTUS is that they'll most probably have to deny cert in the Seventh Circuit cases, and marriages will just be legal in WI and IN. You want slow, incremental progress – you got it.)

  • 19. JayJonson  |  September 23, 2014 at 6:57 am

    I suspect that whatever case SCOTUS takes, they will decide on equal protection grounds. Kennedy does not like the idea of protected classes and heightened scrutiny. He will no doubt use intermediate scrutiny, but as in Windsor will not state that he is doing so. My prediction is that the ruling in whatever case SCOTUS chooses will be closely related to the ruling in Windsor, with an emphasis on the harm state bans do to the children of same-sex parents.

  • 20. Sagesse  |  September 23, 2014 at 3:34 am

    The factors that lean toward them granting cert, after a period of reflection… and probably waiting to see what the 6th circuit does… is that 32 attorneys-general and many of the plaintiffs have asked them to take the case. That and the stays. It's hard to imagine they issued the stays, only to duck the ultimate question. And, by the time they get around to deciding, the 9th should have weighed in as well.

    As an aside, a legal analyst (I forget who) suggested the court might ask the DOJ to submit its views. Can someone refresh my memory, didn't the DOJ participate in the Prop 8 case? Of course they were a part of Windsor, but did they not also submit a brief in Perry?

  • 21. JayJonson  |  September 23, 2014 at 7:06 am

    Yes, the DOJ filed an amicus brief in Hollingsworth. Solicitor General Verilli participated in the oral arguments as well, and was questioned about the U.S.'s position in both Hollingsworth and Windsor. Part of the argument Verilli advanced was that California could not be permitted to withdraw rights it had given. Justice Breyer said that such an argument would create a perverse incentive to do nothing. "A state that does nothing for gay couples hurts them much more than a state that does something."

  • 22. JayJonson  |  September 22, 2014 at 1:34 pm

    In an article posted on, Lisa Keen interviews a lot of attorneys, including Roberta Kaplan, Laurence Tribe, Shannon Minter, Jenny Pizer, Jon Davidson, and Evan Wolfson, about whether it matters which case(s) SCOTUS takes. (Roberta Kaplan says that if the Court doesn't take one, they will deny cert.–i.e., she doesn't think they will hold over any cases until the next term, and same-sex couples will be able to marry in 12 more states). Here is a link:

  • 23. BobxT  |  September 22, 2014 at 2:01 pm

    That was the stmt that stuck out the most to me too. So when Justice Ginsburg says they could wait for a split, the implication is that stays would be lifted.

    "If the Supreme Court declines to review one of the pending marriage cases this session, said Kaplan, it would have to lift the stays currently in place. “Then marriages between gay couples could happen in a whole bunch of new states,” she said."

  • 24. Dr. Z  |  September 22, 2014 at 4:33 pm

    Wonder if that's what the Notorious RBG was trying to communicate between the lines – that she wants SSM in more states first, and the easiest path to that would be if SCOTUS denies cert to all these pending appeals on the grounds that there is currently no circuit split.

  • 25. Sagesse  |  September 23, 2014 at 3:52 am

    Another approach to the question of 'which case', this time from the New York Times…

    Seeking a Same-Sex Marriage Case Fit for History [NYT]

  • 26. Mike_Baltimore  |  September 24, 2014 at 12:00 pm


    When does SCOTUS consider a Circuit split to occur? Is it:

    1. When the ruling comes down? or

    2. When the mandate is issued? or

    3. When SCOTUS receives a request for cert? (Or even decides what action to take on that request for cert. An acceptance or denial of the request [depending on who requests the cert] could easily 'dissolve' the Circuit split..)

    Of course, step one almost always (but it's not 'writ in stone' that it always does) leads automatically to steps 2 and 3, but when does SCOTUS determine that there is a Circuit split?

  • 27. DaveM_OH  |  September 24, 2014 at 12:48 pm


    I'm not sure of the answer, but I think you're asking for a level of precision that doesn't exist, or doesn't really matter – a'la the expression "Measure with a micrometer, mark with chalk, cut with an axe."

    "In contrast to cases lacking certworthiness, a certworthy case presents a conflict that has percolated among several circuits, one over which the split is widespread and the difference is current. And the conflict relates to an important issue as to which inter-circuit disagreement is intolerable." – Steven Shapiro,

  • 28. TimATLGA  |  September 22, 2014 at 1:56 pm

    I get that it takes 4 justices to grant cert. Is there a certain number required to deny cert? In other words, what would it take for SCOTUS to say, "we're denying cert in all seven of these cases and we're lifting the stays in all three of these circuits."

  • 29. ranjitbahadur0  |  September 22, 2014 at 2:22 pm

    Assuming all the judges vote, it would take 6 to deny cert 😉 as there are nine in total.

    If the SC denies cert, the stay will be automatically lifted as the appeals process is over, and the decision of the relevant circuit court becomes law. Basically only the SC can overrule a Federal Circuit court and if they refuse to hear the appeal they are (implicitly) saying that the circuit court decision is correct and stands – without establishing precedent that would bind all the other circuits too.

    I suppose it is technically possible for a circuit court to overrule itself En Banc but since this step was bypassed in all cases, I can't imagine we will go back to this situation.

  • 30. Mike_Baltimore  |  September 22, 2014 at 2:47 pm

    It takes 4 justices to accept a request for cert, thus it takes up to 6 justices to deny certs, or fewer than 4 voting to accept a request for cert.

    And the stays are all worded to indicate that they expire upon a final decision of SCOTUS. That decision doesn't have to be a ruling on one or more cases, just a final decision. A decision to deny a request for cert is a final decision.

  • 31. TimATLGA  |  September 22, 2014 at 3:25 pm

    So does anyone see a scenario where 1 or more of the 4 judges in the Windsor dissent joins with the 5 judges in the Windsor majority to deny cert in any of these cases, if it results in a dozen more states gaining marriage equality? That seems unlikely to me.

  • 32. TimATLGA  |  September 22, 2014 at 7:00 pm

    Continuing my train of thought. If there aren't 6 votes to deny cert, does anyone see a scenario where there's no circuit split by June 2015 and hence no appetite for at least 4 judges to grant cert either? At that point, would it only take 5 judges to lift the stays?

  • 33. Eric  |  September 22, 2014 at 7:41 pm

    The judges are not forced to vote for or against cert, they can abstain or not even be present. Four votes are needed to grant cert, which is not the same as saying six votes are needed to deny cert.

  • 34. TimATLGA  |  September 23, 2014 at 4:45 am

    Gotacha. No threshold needed. Just a majority vote. Then 5 judges are sufficient to deny cert, if one judge isn't present or abstains. And 4 judges are sufficient to deny cert if two judges aren't present or abstain. And so on. I suppose it would be the same for a decision to lift the stays?

  • 35. TimATLGA  |  September 23, 2014 at 4:45 am

    Gotcha. Then 5 judges are sufficient to deny cert, if one judge isn't present or abstains. And 4 judges are sufficient to deny cert if two judges aren't present or abstain. And so on.

  • 36. TimATLGA  |  September 23, 2014 at 4:45 am

    Gotcha. Then 5 judges are sufficient to deny cert, if one judge isn't present or abstains. And 4 judges are sufficient to deny cert if two judges aren't present or abstain. And so on.

  • 37. TimATLGA  |  September 23, 2014 at 4:45 am

    Gotcha. Then 5 judges are sufficient to deny cert, if one judge isn't present or abstains. And 4 judges are sufficient to deny cert if two judges aren't present or abstain. And so on. How about to lift a stay: a simple majority vote?

  • 38. Mike_Baltimore  |  September 24, 2014 at 12:35 pm

    When SCOTUS decides to NOT accept a request for cert (whatever the vote), the decision is considered final, and since all the stays on ME in all the Circuits are all conditioned on final action by the courts, the action would dissolve the stay(s). If any of the requests for cert are accepted, final action has not taken place, thus the stay for that Circuit remains in place. If SCOTUS holds the request, no final action is taken (similar to 2013, when several requests for cert were 'dispatched' after the Windsor and Hollingsworth rulings came down – they were all dismissed (thus final action) in an announcement made the day following the rulings.

    The good news is if the stay in any particular Circuit is lifted, it means immediate relief in the state from which the stay was issued (for instance, in the 4CA, GLBT residents of Virginia would get 'immediate' relief if SCOTUS denies all the requests for cert in that case).

    The bad news is that lifting the stay almost assuredly means those GLBT residents not living in the affected state(s) would not get immediate relief (again, for instance, in the 4CA North and South Carolina and West Virginia would get relief only after further action by the 4CA, other lower courts, or when SCOTUS further rules). Thus there would be a delay for the GLBT residents of those states.

    It then becomes a case of immediate justice for some, but delayed, or even denied (such as when a Circuit Court does not rule on any case), for others. And it also does nothing for GLBT residents of Circuits that have not yet reached the stage where a request for cert is considered 'ripe' for SCOTUS ruling (for example, 5CA, 11CA, and so far 6CA). (I'm intentionally ignoring the 8CA, as there is disagreement over whether their pre-Windsor ruling applies to this situation or not.)

  • 39. TimATLGA  |  September 24, 2014 at 12:51 pm

    Thanks, Mike. What I'm asking is: let's say the 6th rules in our favor, so there's still no post-Windsor split. Then let's say that no other circuit rules before the end of this next SCOTUS term in June 2015. Perhaps some judges start to re-think the fairness of continuing the stays, having still not granted or denied cert (still waiting on that circuit split). In that scenario, does it take a simple majority vote to lift the stays?

  • 40. Mike_Baltimore  |  September 24, 2014 at 1:29 pm

    Your original question was how many justices does it take to accept or deny a cert, but now you are asking a hypothetical question about how many to dissolve (lift) the stay.

    Until a stay is lifted, it is still in effect. A stay (in all the current ME cases) is lifted when final action is taken on the case. Accepting or denying a cert is considered final action; it takes 4 votes to accept. If 3 justices vote to accept the request for cert, 3 vote to not accept, and 3 abstain from the vote, the cert is not accepted (remember it takes the vote of 4 Justices to accept the request for cert), thus denied, thus final action has been taken. The vote of 4 (of 9) is NOT majority, and yet the vote of 4 (of 9) can delay final disposition of the stay.

    And many would argue that there already is a Circuit split if the 2006 (pre-Windsor) ruling from the 8CA is taken into account. Since that decision is less than 10 years old (and the court decided, among other things, that there was no violation of the equal protection clause of the 14th Amendment), many would consider that ruling to be 'recent'.

    Also remember, some of the stays were put in place by SCOTUS. Why vote to dissolve a stay when a later vote could be to accept the request for cert, and the resultant ruling would have the potential to uphold or reverse the court action that created the stay?

  • 41. TimATLGA  |  September 24, 2014 at 1:55 pm

    Yes, I would agree with you that there's already a circuit split. My hypothetical was if the judges were waiting for a post-Windsor circuit split before they are willing to grant cert, a course of action that RBG alluded to as a possibility.

    So you're saying the only way that the stays can be lifted is a vote to approve cert or to deny cert. There's no middle ground whereby they can pospone the cert question until the 2015-2016 term (assuming there still isn't a post-Windsor circuit split) and lift the stays while that decistion is in limbo.

  • 42. Mike_Baltimore  |  September 24, 2014 at 3:26 pm

    I did not state whether I agree that there is or is not a Circuit split. Mainly because I haven't yet studied the cases to see if, IMO, there is or is not a Circuit split. And SCOTUS may very well hold a different viewpoint than what I eventually come to.

    If you actually read what I stated, I stated that ". . . many would argue that there already is a Circuit split if the 2006 (pre-Windsor) ruling from the 8CA is taken into account."

    Your opinion may be in accord with the 'many', but I didn't say whether I do or not agree with the 'many', again mainly because I have not studied the cases sufficiently to have an opinion on the subject.

    And where did I say SCOTUS MUST decide this year? I have stated that, to my knowledge, there is no rule stating whether SCOTUS can or cannot 'relist' a request for cert as many times as it wishes, even if they 'relist' for up to 50 years (I doubt they would 'relist' for that long, but no one yet has cited anything that would prevent that. If you know something different, then please present the information.)

    Remember, in the Windsor and Hollingsworth cases, SCOTUS 'relisted' both cases several times before accepting them, and 'held' the other requests for cert until after the Windsor and Hollingsworth rulings came down. In Hollingsworth, the request for cert was on July 31 by the proponents, the opponents of Prop H8 asked SCOTUS to deny cert on August 24; the certs were originally listed for the 'long conference' at the end of September, but only on (after 'relist' after 'relist') December 7 did SCOTUS grant cert for hearing the case.

  • 43. TimATLGA  |  September 24, 2014 at 3:55 pm

    My bad. True, you didn't actually say whether or not you believed there is already a circuit split. I assumed, incorrectly, that you were including yourself among the "many."

    Right, you didn't say that SCOTUS must decide this year on cert; nor did I say that you did. I was asking if SCOTUS could lift the stays without deciding on cert. I proposed that the reason they would do this is if there still wasn't a post-Windsor circuit by the end of the term (and if that's what they're waiting for before granting cert) they might decide that such a lengthy stay is too burdensome to gay couples. Could they then lift the stay before deciding on cert? I interpreted your answer as no. Please correct me if I misinterpreted your answer.

  • 44. sfbob  |  September 24, 2014 at 12:43 pm

    If I understand correctly four justices are sufficient to grant cert and the number not voting to grant cert is basically irrelevant.

  • 45. TimATLGA  |  September 23, 2014 at 4:45 am

    Gotcha. Then 5 judges are sufficient to deny cert, if one judge isn't present or abstains. And 4 judges are sufficient to deny cert if two judges aren't present or abstain. And so on. How about to lift a stay: a simple majority vote?

  • 46. TDGrove  |  September 22, 2014 at 1:58 pm

    Sorry if this turns out to be wrong, and I can't find confirmation of it, but I just read a comment on another site that said that a Louisiana State Court judge had just ruled against that state's ban. If people with better search skills could check it out, that would be great!

    Edit: Scotty has an article up now on this.

  • 47. Margo Schulter  |  September 22, 2014 at 4:13 pm

    As for cases, how about Michigan, where there was a full trial and factfinding by Judge Friedman, including the debunking of Mark Regnerus and his “New Family Structures Study”? That gets into the whole “optimal childrearing” pretext, and also, of course, ties in with the adoption question.

  • 48. Margo Schulter  |  September 22, 2014 at 4:16 pm

    I wonder if Justice Roberts might go along with denying cert., more or less “for the sake of the institution”? The idea might be that more “percolation” (even if only just another year, with a decision in June of 2016) might get the public even more used to marriage equality as everyday life, and let the Court ratify a fait accompli (in that most States would already be doing it, and public opinion would be even more strongly in favor).

    In other words, as little like Roe v. Wade as possible in terms of perceptions of “SCOTUS-imposed law.”

  • 49. Margo Schulter  |  September 22, 2014 at 4:17 pm

    Chief Justice Roberts, of course!

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