Justice Thomas Dissental on the “Court’s increasingly cavalier attitude toward the States”

February 9th, 2015

Justice Thomas, joined by Justice Scalia, dissented from the Court’s denial of a stay in Alabama’s petition to put on hold a judgment invalidating its ban on same-sex marriage–and he does not hold back.

First, Justice Thomas notes that generally, when a state law is declared is unconstitutional, the ordinary practice is to put the ruling on hold.

When courts declare state laws unconstitutional and enjoin state officials from enforcing them, our ordinary practice is to suspend those injunctions from taking effect pending appellate review. See, e.g., Herbert v. Kitchen, 571 U. S. ___ (2014); see also San Diegans for Mt. Soledad Nat. War Memorial v. Paulson, 548 U. S. 1301 (2006) (KENNEDY, J., in chambers) (staying an injunction requir- ing a city to remove its religious memorial). Although a stay is not a matter of right, this practice reflects the particularly strong showing that States are often able to make in favor of such a stay. Because States are required to comply with the Constitution, and indeed take care to do so when they enact their laws, it is a rare case in which a State will be unable to make at least some showing of a likelihood of success on the merits. States also easily meet the requirement of irreparable injury, for “‘[a]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.’ ” Maryland v. King, 567 U. S. ___, ___ (2012) (slip op., at 2–3) (ROBERTS, C. J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U. S. 1345, 1351 (1977) (Rehnquist, J., in cham- bers)). The equities and public interest likewise generally weigh in favor of enforcing duly enacted state laws.

Keeping with this practice, Thomas notes it was not surprising the Court granted a stay in Herbert v. Kitchen (Utah) or McQuigg v. Bostic (Virginia).

It was thus no surprise when we granted a stay in simi- lar circumstances a little over a year ago. See Herbert v. Kitchen, supra. Nor was it a surprise when we granted a stay in similar circumstances less than six months ago. McQuigg v. Bostic, 573 U. S. ___ (2014). Those decisions reflected the appropriate respect we owe to States as sovereigns and to the people of those States who approved those laws.

Thomas explains that the petition from Alabama should have been treated the same, even though the Court denied seven pending petitions on October 6.

This application should have been treated no differently. That the Court more recently denied several stay applica- tions in this context is of no moment. Those denials fol- lowed this Court’s decision in October not to review seven petitions seeking further review of lower court judgments invalidating state marriage laws.

Next, Thomas admits that he “disagreed” with the denial of stays from Florida, South Carolina, and Kansas, respectively, because at the time certiorari had been granted:

Although I disagreed with the decisions to deny those applications, Armstrong v. Brenner, ante, p. ___; Wilson v. Condon, ante, p. ___; Moser v. Marie, ante, p. ___, I acknowledge that there was at least an argument that the October decision justified an inference that the Court would be less likely to grant a writ of certiorari to consider subsequent petitions. .

However, after the Court granted certiorari a few weeks ago based on the 6th Circuit forking a split, the Court will resolve the issue this term. Now, the AG of Alabama is in an even stronger position to get a stay.

That argument is no longer credible. The Court has now granted a writ of certiorari to review these important issues and will do so by the end of the Term. The Attorney General of Alabama is thus in an even better position than the appli- cant to whom we granted a stay in Herbert v. Kitchen.

Thomas then faults the district judge in Alabama (and I would add the 11th Circuit) for not maintaining the status quo, as the issue was pending before the Court.

Yet rather than treat like applicants alike, the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to pre- serve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013) (slip op., at 25–26).

Thomas then unloads a very, very serious attack at the Court’s institutional credibility.

This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is. Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States.

Thomas stresses the fact that the Court’s decision has little respect for the people who voted for these referenda–perhaps based on the presumption that such voters may only be motivated by animus.

It has similarly declined to grant certio- rari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them.

Most importantly, even though the Court has granted cert, and will render a decision in less than 4 months, the Court couldn’t put the issue on hold.

In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.

At this point, it is a complete fait accompli. For Thomas, a stay should issue to preserve the status quo and respect the people who voted for these laws.

I respectfully dissent from the denial of this application. I would have shown the people of Alabama the respect they deserve and preserved the status quo while the Court resolves this important constitutional question.

The entire enterprise of the same-sex marriage cases has, from the Court’s perspective, taken on this odd sense of inevitability. Justice Ginsburg has notoriously claimed, over and over again, that the Court would eventually rule in favor of gay marriage, when the time is right. For all the hyperbolic talk about King v. Burwell destroying the institution of the Court–recall only 1 out of 6 Circuit Judges found that the IRS Rule unambiguously favors the government–there has been a glaring lack of concern for the rule of law and procedure for the same-sex marriage cases. I am working on an article with a colleague that addresses these procedural issues, starting with Utah and leading up to the Court’s ultimate blessing. The article will say nothing about the merits, but rather look at the contorted path the case took.