Thomas Weighs In On Denial Of Stays in SSM Cases: “Our recent practice, however, gives me little reason to be optimistic.”

November 13th, 2014

Today, the Supreme Court denied a stay of a 9th Circuit decision invalidating an amendment to the Arizona Constitution. Justice Thomas, joined by Justice Scalia, issued a statement with respect to the denial of the stay. While he agreed granting a stay was not appropriate here, he weighed in on the Court’s erratic denial of stays from opinions that invalidated state constitutional provisions:

We have recognized a strong presumption in favor of granting writs of certiorari to review decisions of lower courts holding federal statutes unconstitutional. See United States v. Bajakajian, 524 U. S. 321, 327 (1998); United States v. Gainey, 380 U. S. 63, 65 (1965). States deserve no less consideration. See Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1177 (1996) (SCALIA, J., dissenting from denial of certiorari) (“This decision is questionable enough that we should, since the invalidation of state law is at issue, accord review”). Indeed, we often review decisions striking down state laws, even in the absence of a disagreement among lower courts. See, e.g., Hollingsworth v. Perry, 570 U. S. ___ (2013); Cook v. Gralike, 531 U. S. 510 (2001); Saenz v. Roe, 526 U. S. 489 (1999); Renne v. Geary, 501 U. S. 312 (1991); Massachusetts v. Oakes, 491 U. S. 576 (1989). But for reasons that escape me, we have not done so with any consistency, especially in recent months. See, e.g., Herbert v. Kitchen, ante, p. ___; Smith v. Bishop, ante, p. ___; Rainey v. Bostic, ante, p. ___; Walker v. Wolf, ante, p. ___; see also Otter v. Latta, ante, p. ___ (denying a stay); Par- nell v. Hamby, ante, p. ___ (same). At the very least, we owe the people of Arizona the respect of our review before we let stand a decision facially invalidating a state consti- tutional amendment.

Of course, the Court has yet to act on a petition for a writ of certiorari in this matter, and I hope my prediction about whether that petition will be granted proves wrong. Our recent practice, however, gives me little reason to be optimistic.

Wow. This is remarkable. Thomas and Scalia–who voted for a stay in the Kansas case–seem frustrated by the Court’s refusal to grant certiorari.