For some time now, I have been blogging about the rule of law, as applied to the same-sex marriage cases. My discussion has nothing to do with the merits of the case, or how the case will turn out at the Supreme Court.
Rather, my focus has been on how the lower courts have behaved in bizarre ways with respect to fairly routine procedural matters. Twice the Supreme Court granted emergency stays from Utah, and twice those appeals were granted. Some courts, such as the 9th Circuit, took note of this action, and stayed its own ruling. Other courts–I’m looking at you 4th Circuit–without any analysis, declined to stay their ruling.
Like in Utah, the clerks in Virginia were forced to file emergency appeals to stop the mandate from going into effect. And once again, the unanimous (See update) Supreme Court has dutifully granted the stay.
All 9 Justices agreed to this order–including 4 Justices who are almost a lock to uphold that judgment. There has not even been a dissent from the liberal darling, the Notorious RBG, who has officiated at several same-sex weddings.
Granting stays is not a liberal or conservative issue. It is a procedural issue–maintain the status quo so the case can be fully appealed. This is especially the case where the Court has *twice* weighed in on this issue, and *twice* granted stays. There should be no surprise about this. The lesson was clear.
Shame on 4th Circuit Judges Floyd and Gregory for refusing to stay the rulings, without a single sentence of analysis, in the face of Supreme Court precedent to the contrary.
Update: As a few people pointed out on Twitter, technically the grant of the stay is not unanimous. It only means that no Justices were on record as offering a dissent. Justice Ginsburg made this point recently in an interview–perhaps with these stays, and Little Sisters of the Poor on her mind.
Ginsburg cautioned not to read too much into the absence of public dissent when the court rejects 11th-hour appeals to stop executions. ‘‘When a stay is denied, it doesn’t mean we are in fact unanimous,’’ she said.
In any event, I’m not persuaded. If a Justice disagrees with something, and decides not to dissent on record, then I will deem her in agreement. This business of joining an order you don’t agree with is a bit bizarre. Perhaps, a Justice doesn’t agree with it on the merits, but won’t dissent in order to maintain relations on the Court? If so, then the Justices agrees with granting the order. There isn’t a way to dissent quietly. Dissenting means you dissent. There are often dissents to denials of death penalty stays. The Justices know how to issue those.
We have courts of record, not courts of internal opinion. This is why I had a really tough time getting Justice Sotomayor’s outrage in Wheaton College, when she also joined the Little Sisters of the Poor Order. Perhaps they didn’t really accept the first order–but they joined it.
So I’ll caveat the phrase “unanimous,” but I will treat all 9 Justices acting in agreement.