The first Monday in October is the traditional start day for the annual term of the United States Supreme Court.
Burt Likko has a very good rundown of some of the cases that are pending before the Court.
The big news, of course, is the Court’s decision to deny all the petitions in the same-sex marriage cases. I cannot recall ever seeing so many people so excited over a denial of cert. The best explanation* for the SCOTUS decision may be that there is no circuit split, and therefore no need to wade into the issue at this time. (There is a ruling from a District Court in Louisiana upholding a SSM ban there, which does buck the trend in the appellate courts so far; but that decision may be overturned by the Fifth Circuit. There is also an anti-SSM ruling from a soon-to-retire trial judge in Roane County, Tennessee; but the continued efficacy of that ruling will hinge on what the Sixth Circuit does in a different case. [See also here.])
Ann Althouse speculates that the Court may be waiting for a circuit split. Also, since every federal appellate court that has heard a case post-Windsor has ruled in favor of SSM, the Court “has reason to believe that condition [i.e., a circuit split] will never occur, and it can preserve its political capital by never weighing in on the subject.”
At the Volokh Conspiracy, Jonathan H. Adler
Most commentators have assumed the Supreme Court would take one or more of these cases and (perhaps) conclusively determine whether the federal Constitution bars states from refusing to recognize same-sex marriages under state law. Yet all seven cases below had come out the same way. In all seven, lower courts struck down the challenged state laws, so there was no circuit split.
Given the lack of a split, I do not think it is at all surprising that the court denied these petitions. … There are several more cases pending in lower courts, including some in which there are reasons to suspect the states will prevail. If so, the court will have a split to resolve, making a grant a sure thing. If not, and same-sex marriage advocates run the table, the court can avoid resolving the issue.
Adam Liptak, writing in the New York Times, had predicted something like this back in February (emphasis added):
Since June, when the Supreme Court ruled that same-sex couples are entitled to equal treatment in at least some settings, federal judges in Oklahoma, Utah and Virginia have struck down laws barring same-sex marriages. In state legislatures and state courts, too, supporters of same-sex marriage have been winning.
“The pace of change has perhaps outstripped the Supreme Court’s preferences, but the momentum is tremendous,” said Suzanne B. Goldberg, a law professor at Columbia.
Rapid changes in public opinion are also playing a part, said Andrew M. Koppelman, a law professor at Northwestern. “It is becoming increasingly clear to judges that if they rule against same-sex marriage their grandchildren will regard them as bigots,” he said.
Still, the justices are often wary of a backlash and might prefer to let the democratic process and lower courts work through contentious social issues before weighing in.
Building on Liptak’s column, Emily Bazelon wrote in May:
What’s amazing is that so far, all the courts have followed the equality move, and the momentum raises a question no one would have dreamed of a year ago: Will gay marriage become the law of the land without the Supreme Court doing anything more?
We’ve arrived here so much faster and more agreeably than anyone could have predicted even a year ago, when the challenges post-Windsor looked like they would split the district courts, take their time wending their way through the appellate process, and maybe arrive back at the Supreme Court in, say, 2017, safely after the next election. Instead, no judge wants to write the opinion denying the benefit of marriage.
Since Liptak and Bazelon published the above pieces, a couple of judges have bucked the trend (see above), but those decisions from trial-level courts are outliers. The momentum is still on the side of the pro-marriage equality forces; the state bans continue to fall, either at the ballot box or in the appellate courts.
Coming back to today: Andrew Sullivan is jubilant, and includes this:
What I also love about this conservative but extraordinary decision from SCOTUS is that it affirms the power of federalism against the alternatives. Marriage equality will not have been prematurely foisted on the country by one single decision; it will have emerged and taken root because it slowly gained democratic legitimacy, from state to state, because the legal and constitutional arguments slowly won in the court of public opinion, and because an experiment in one state, Massachusetts, and then others, helped persuade the sincere skeptics that the consequences were, in fact, the strengthening of families, not their weakening.
Dahlia Lithwick is less impressed. At LGM, Scott Lemieux observes that deciding not to decide is itself a decision.
Meanwhile, Mother Jones has a map of where SSM is legal now, incorporating the immediate results of today’s SCOTUS non-decision decision.
Howard Bashman, at his How Appealing blog, has a roundup of coverage and opinion on the Court’s decision to deny cert.
* To the extent that any explanation is needed to explain why SCOTUS doesn’t grant cert in any particular case, when the annual percentage of cert grants is on the order of 1%.
Image Credit: Photo by Kjetil Ree. Used under a CC BY-SA 3.0 license. Source: Wikimedia Commons.