What changed? How did 5 Votes to Grant Stay on Aug. 20 turn into 6 Votes To Deny Cert On October 6?

October 6th, 2014

Between August and September, something changed at the Supreme Court Court. Six weeks ago on August 20, at least 5 Justices, with no recorded dissents, granted a stay to prevent the 4th Circuit’s judgment from going into effect. One month before that on July 18, at least 5 Justices, with no recorded dissents, granted a stay to prevent the 10th Circuit’s judgment from going into effect. Six months earlier on January 6, 5 Justices, with no recorded dissent, granted a stay to prevent the Utah District Court’s judgment from going into effect. (The only exception, where a stay was denied was an appeal by the National Organization for Marriage from Oregon, but they were not a proper party.)

On three separate occasions, over the course of 8 months, at least 5 Justices voted prevent a judgment invalidating a same-sex marriage ban from going into effect. In each case, the Justices acted promptly to maintain the status quo. There was no recorded dissent.

Something changed between the emergency appeals, and the Long Conference. Five votes to prevent gay marriage from going into effect turned into (at least) six votes to allow gay marriage to go into effect in many states. After all, the clear effect of deny certiorari, is to lift the previous stays that five justices granted. It would have only taken four votes to grant cert, and leave the stays in place. So we are talking about a swing of at least two justices. By not granting cert, same-sex marriages will be performed in many states, creating serious irreparable injuries in the event that the Court ultimately reverses the decision.

Now, I will indulge in pure and unadulterated speculation. I’ll assume for the moment that Justices Ginsburg, Breyer, Sotomayor, and  Kagan, who all joined the majority in Windsor, did not agree with granting of stays in the 4th and 10th Circuits. They probably thought there was no likelihood of success on appeal. So that’s four. That still leaves 5 other Justices who would be willing to vote to grant the stay in January, July, and August. That will have to include Justice Kennedy. Presumably, if AMK wanted to vote to deny the stay, he could have, and all of the lower courts would have taken notice. As recently as August 20, at least 5 Justices–including AMK presumably–voted to grant a stay, to prevent the 4th Circuit’s judgment from going into effect.

Today’s order reversed that, and allowed the 4th Circuit’s judgment to go into effect.  I can think of a few possibilities of what happened.

First, the easiest explanation to fathom is that Justice Kennedy changed his mind from 6 weeks ago, and decided that since there was no split, all of the judgments should have gone into effect. But, it’s not enough for AMK to do it himself. You only need four votes for certiorari. If the other 4 justices who granted the stay (Roberts, Scalia, Thomas, Alito) were of the same mind as they were 6 weeks ago, they could have gone ahead and granted cert, thus keeping the stays in place. That would have put on hold all the lower court cases in the 5th, 6th, and 11th Circuits, and slated arguments for January or February. The predictable response is maybe they didn’t want to annoy AMK. Well, it’s either now or never. If cert is not granted now, the likelihood of upholding the bans after thousands of marriages decreases precipitously.

Second, in addition to Kennedy changing his mind, one of the other Justices from the conservative wing also had to switch. In light of what we know about NFIB v. Sebelius, the most likely candidate is Chief Justice Roberts. I suspect that at some point in the last 6 weeks, he decided that he would join the AMK block to deny certiorari. So why did the Chief change his vote? Perhaps, like in NFIB, he saw which way the wind was going, and decided this issue was not worth fighting for? He wanted to avoid a political battle before a midterm? Or, maybe, he made the calculation that the easiest way to achieve his goal of minimalism was to keep the Court out of it (thank God Chief Justice Marshall didn’t deny cert in Marbury!)? Or maybe, being influenced by the liberals, he decided to form a block to deny certiorari? Who knows.

What makes the Chief’s change of mind most troubling–if indeed it was him–was his dissent in Windsor two years ago. He went out of his way to say that the Court will have to address this question in the future:

We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples. That issue, however, is not before us in this case, and we hold today that we lack jurisdiction to consider it in the particular context ofHollingsworth v. Perry, ___ U.S., at ___, 133 S.Ct. 1521. I write only to highlight the limits of the majority’s holding and reasoning today, lest its opinion be taken to resolve not only a question that I believe is not properly before us — DOMA’s constitutionality — but also a question that all agree, and the Court explicitly acknowledges, is not at issue.

But by ducking certiorari, the Court is doing the *exact* opposite. The Court is standing by the countless lower courts that read Windsor to support this decision. Such a turnaround from the Chief would be a repudiation of his own purported minimalism in Windsor.

Third, even assuming that both Kennedy and Roberts voted to deny cert, and there were only three Justices left who agreed with the stays (Scalia, Thomas, and Alito), why were there no published dissents? Even more importantly, the petitions weren’t even relisted! As has been the practice of late, before any major case is considered for a grant, there is at least one relist. If a dissent from denial of certiorai is forthcoming, there will be several relists to provide time to write it and circulate it. For a case of this significance, I would imagine Scalia could put together one barn-burner of a dissental, blasting the other Justices for cowardice and avoiding the important issue that he presaged in his Lawrence and Windsor opinions.

But we didn’t see any of that. In an earlier post, I got beat up on in the comments because I assumed that an order without a dissent meant the order was unanimous. But we’ve since learned, as RBG said in an interview about Sotomayor, that just because a Justice joins an order without a dissent, doesn’t mean the Justice agrees with it. I think the same dynamics apply to the denial of certiorari.

Cert was denied at the first opportunity after the long conference. There wasn’t even enough time for a draft dissent to circulate–a dissent that could have been used to persuade the other Justices to grant cert (not necessarily of how they should vote). So why was there no dissent from Scalia, Alito, or Thomas? Well first, there were 6 votes to deny cert. A dissental would have served no purpose other than to alienate the other Justices. But that’s not plausible, as Scalia does that for fun.

Or, maybe the conservatives just called it quits. They see the writing on the wall, and don’t want to do this anymore. “Meh,” as they say.  I can’t believe that is what happened. Especially two year after their Windsor dissent. Justice Alito meant what he wrote. Justice Scalia meant what he wrote. Justice Thomas agreed with Scalia’s opinion that he joined. Chief Justice Roberts, maybe not.

Next, I’ve seen several people write that they Justices may think another President could change the composition of the Court. That won’t happen before 2016. Even if RBG is replaced, there are still 6 votes to deny certiorari.

What’s more likely, is that the three conservative justices did the math.  There is an outside chance another vehicle will come up to generate a circuit split–either from the 5th, 6th, 11th, or Texas Supreme Court. That’ll force a cert grant. They’ll get their chance to breath fire against Justice Kennedy’s sweet mysteries of life in due time in a dissent from an argued case. They shouldn’t have to spend all their ammo on a dissental.

What happens, if *every single court* invalidates the same-sex marriage bans? There would be a de facto 50-state constitutional change without the Court stepping in. Then, on the final case which can be denied, the conservative Justices can open fire and lambaste the majority for cowardice for denying cert. Today, such a criticism may be slightly premature. There are still other cases pending, and it is not ridiculous for the Justices to stay their hand and wait–though by lifting the stays, they have showed their cards. But, if the last possible appeal is pending, and cert is denied, thereby delegating their role to the lower courts, Scalia’s apocalyptic dissental will have much more resonance. I’m sure there was also some behind-the-scenes discussions with the three conservatives, and they agreed this was a more prudent cause of action.

Again, this is all speculation. I am usually entirely wrong about these things–hell, I didn’t see *any* of this coming today.