Why Did SCOTUS Say No to Marriage Cases

The Supreme Court’s denial of cert in all of the pending cases involving bans on same-sex marriage came as a surprise to most observers. They never make any statement about why they don’t hear an appeal, but there’s a lot of speculation on why they couldn’t get the four votes necessary to take on those cases. Jeffrey Toobin points out that both sides may have had concerns about taking the case:

It’s possible that neither the liberal nor the conservative bloc felt confident enough of Kennedy’s vote to risk letting him decide the case. So better to kick the can down the road.

The conservatives have a special reason for delay. Ginsburg, at 81 the oldest justice, will probably leave during the next president’s term. A Republican president would replace Ginsburg with a solid conservative vote and make Kennedy’s vote irrelevant. So waiting might be an appealing option for them.

The liberals had their own reasons for delay. Same-sex marriage has marched with great speed across the country. Today’s non-decision means that more than half the states, with well more than half the population, have marriage equality. Those facts create their own momentum. More time equals more states, which might (the theory goes) make Kennedy’s vote easier to get a year from now.

I think both of those are quite plausible, but I think the conservative concerns are more realistic. Switch a single liberal vote on the court and same-sex marriage as a federal matter goes away completely (until such time as Congress might pass legislation recognizing such marriages, which is almost certainly a long way away if it ever happens). I think my buddy Dan, who teaches con law, is correct that Justice Kennedy sees this as his legacy on the court. And I don’t think he would pass up the opportunity at this point to make it a reality.

Noah Feldman, on the other hand, thinks the liberals on the court may be playing a long game on this one, seeking to make it seem inevitable in order to make it happen down the line, and may also fear a potential backlash:

Inevitability, it might be thought, is what the Supreme Court waits for before making any landmark decision. But in this case, there is another major consideration: The justices are also worried about fueling a backlash that would render their decision illegitimate, even if it seemed inevitable. The great worry of the Supreme Court – or at least of Justice Kennedy — is that a premature gay-marriage decision would produce the kind of substantial public disagreement that followed Brown v. Board of Education and Roe v. Wade.

That strikes me as very unlikely. It may well be similar to the result in Brown temporarily, where the red states throw a temper tantrum, but it’s important to note that a solid majority now supports marriage equality nationally. That would pretty much rule out a backlash similar to Roe.

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  • http://kamakanui.zenfolio.com Kamaka

    What’s to consider? So far all the Circuit Courts are in agreement, so there’s nothing to resolve.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi


  • http://drx.typepad.com Dr X


    Agree. There’s nothing as disgusting as Judges publicly liberalactating. They’ve got robes, so there’s no excuse.

  • jeevmon

    The problem with the idea that the conservatives are kicking the can down the road in the hope of getting a conservative justice to replace Ginsburg is that by doing it in this way, they’ve effectively conferred marriage rights on those areas where the bans were struck down. Waiting to reverse until the staffing of the court is more favorable or when an actual split develops (if one does) presents a special problem that was not previously there – those same-sex couples who have now married and are enjoying the benefits of their legal marriage would be immediately stripped of those rights. This was exactly the problem the 9th Circuit had with Prop 8 – it took away something that had been conferred on same-sex couples. The time to reverse would have been now, when the decisions overturning the bans have been stayed and therefore no one has relied upon the overturning to order their lives.

  • colnago80

    I agree with Kamaka @ #1. IMHO, the court, or at least Kennedy, doesn’t want to make a decision so they are content to allow the lower courts to take the heat. In fact, the non-decision may induce the 3 judge panel in the 5th Circuit which appeared posed to overrule the district courts in that circuit to rethink their position in the matter. If there continues to be no conflict between the circuits, the SCOTUS can just sit back and let it happen.

    Of course, ole Ted Cruz has stated he will introduce a constitutional amendment which would prevent the courts from overruling state authority. It would seem that there is no level of demagoguery that the senator will not stoop to


  • D. C. Sessions

    The Roberts Court has no problem throwing out any amount of precedent and lower court decisions — even when they’re unanimous — if that’s what it takes to establish something important like an individual right to own guns, buy elections, “equal State sovereignty” etc.

    And at the time of Roe v. Wade, the plurality opionion in the USA regarding abortion was “meh.” Among Christians, it was a Catholic issue until years later when the Religious Right started a top-down move to turn it into a wedge issue. That’s not likely to happen with SSM, if only because it’s already been used as a wedge issue — and run out of steam.

    IMHO most of Team Republican doesn’t really care much one way or the other (Alito perhaps excepted) about SSM except as regards its political utility as we saw in 2004. And for now, a nondecision with no incriminating Republican fingerprints serves far better to juice the base without risk of adverse consequences suits them perfectly. Let the wingers rant about “unelected activist judges” — it’s all just talk that can’t do anything precisely because the courts have taken it out of legislative hands. Or at least, until they can come up with TRAP-type laws for SSM.

  • eric

    @1 –

    So far all the Circuit Courts are in agreement, so there’s nothing to resolve.

    Ah, but IIRC we may have incoming ordnance from the 5th Circuit, which now has to rule on LA’s same sex marriage ban (which has already passed the district court level).

    One of my thoughts on SCOTUS’ rejection is that Kennedy and the liberal wing may have just decided not to anger the conservatives by “pushing” to take a SSM case, when they will practically automatically get a SSM case in front of them if the 5th Circuit rules against the other Circuits. IOW, why expend political capital and poke the bear to get one of these cases in front of the court today, when they can just wait a few months and have one land on their doorstep?

  • cptdoom

    It is also possible the liberals are playing the long game that Scalia will have his inevitable heart attack before a Republican can gain the Presidency.

  • colnago80

    Re eric @ #7

    It may be that they were sending a message to the 3 judge panel in the 5th circuit: don’t rock the boat.

  • John Pieret

    it’s important to note that a solid majority now supports marriage equality nationally. That would pretty much rule out a backlash similar to Roe.

    I’m not so sure of that. When Roe came down, there wasn’t much religious right objection to it. Most criticism came from the Catholic hierarchy (not so much the laity, even now). It was then blown up into a culture war issue by certain religious right figures, notably Francis Schaeffer, as a way to get conservative Christians involved in politics. I don’t think SSM will be the same sort of wedge issue … it’s hard to see state legislators campaigning on imposing unnecessary “safety” measures on gay wedding chapels … but it could remain a source of resentment for a long time.

    My own (admittedly amateur when it comes to SCOTUS watching) take is that something happened that made it clear that the court was going to strike down SSM bans (possibly Roberts letting it be known that he would vote that way) so the court let these cases go into effect without concern that tens of thousands of marriages could be nullified later.

  • anubisprime

    From an, admittedly jaundiced skewed, probably misinformed, opinion from an outsider to American political and social life it seems to this observer that this is a ass saving game played by SCUTUS to allay fears of future generations pointing and laughing at their individual tenures.

    The conservatives are aware that a significant segment of public opinion, now becoming a majority, is seemingly in favour of non-discrimination of teh ghey in marriage terms, or at least are not reacting with unabated hell’s fury at the thought and mass million homophobic marches on SCOTUS HQ…that is a difficulty…they assume quite rightly that after all the years that teh ghey have been roundly kicked to the curb in every aspect of life, the times really are a changing, they are all watching with bated breath wishing not to be caught on the wrong side of the fence they are all precariously perched on.

    The religious wing of righteous-R-Uz are losing case after case, up and down the state circuits, so far, not because it is a slam dunk of an ethically correct and decided subject (although to the enlightened it surely is) but because they have absolutely piss poor arguments against, no better then pre-school kiddies arguing on the swings and roundabouts, not even salvageable by a sympathetic suitably bigoted judge.

    Bottom line is being on the wrong side of history does their rep and name no particular good and after all they have families, maybe containing a ghey orientation here and there.

    Tricky call, no matter how much your political sycophants nudge and nudge for a suitable ruling to appease their innate bigotry, history is a cruel reminder and teh cyber online wikki’s would be merciless, and what is more, forever!

    This is not about a glorious future based on pristine and ethically moral law, it is about following lawful precedent and where that it is going appears to be dragging them by the nose down the road they had no real wish to tramp.

    Despite Scalia ripping up the road map every now and then.

    As for the liberal bench, almost the same set of ‘reasons’ except they actually probably fear impeachment, or the judicial equivalent, if a rethug gains office next election.

    In all probability the arguments from other contributors here are nearer the mark in explaining this ‘event’ …as I say it is an impression, not a reasoned analysis…as no doubt I will be told!

  • whheydt

    It is also possible that Roberts doesn’t want “his” court to go down in history as the early 21st century equivalent of the Taney court and for that reason has hinted to his fellow conservatives that he won’t vote with them in this matter.

    Alternatively, all of the justices have looked at the arguments that have been put forth on both sides of the SSM cases and realize that they would be a collective laughing stock if the overturned the appellate circuits based on the arguments that have been made.

  • Hatchetfish

    D.C. @ 7: “Or at least, until they can come up with TRAP-type laws for SSM.”


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  • http://kamakanui.zenfolio.com Kamaka

    Hahaha! The 9th Curcuit chimed in today. Nevada and Idaho had their SSM bans overturned with Alaska, Arizona and Montana in the district, so soon to follow.

    35 states. Never did I think I would see this in my lifetime. It is a beautiful thing.

    Coming next: an outspoken atheista as president.

  • http://kamakanui.zenfolio.com Kamaka


  • D. C. Sessions

    Kamaka, it’s OK. I’ll be drinking pretty soon myself.

    $DAUGHTER is still at work, but she and her hubby will be opening a bottle of the good stuff tonight for friends all over the Ninth. /me included (and I’ll just have to work it into my dinner date. She’s a friend of a son’s and will deal.)

  • whheydt

    9th Circuit also said “intermediate scrutiny”…a much tougher standard than “rational basis.”

  • http://www.gregory-gadow.net Gregory in Seattle

    Change in the United States has almost always waited until it was inevitable. By the time the 19th Amendment guaranteed a woman’s right to vote, most states had already extended the elective franchise. When the Supreme Court struck down antimiscegenation laws with Loving v. Virginia in 1968, only 18 of 50 states had such laws on the books.

    With regards to marriage, I would like to think that the Supreme Court is following hallowed tradition and waiting until the only work left is the mopping up.

  • D. C. Sessions

    Gregory in Seattle:


  • gshelley

    The 9th also lifted the stay. It will be interesting to see if Idaho appeals and asks the Supreme for one while they decide.

  • Synfandel

    An interesting graphic on the march of public opinion (in the USA) on interracial marriage versus same-sex marriage:


    Hover your mouse over the graph for the artist’s comment.

  • Synfandel

    D’oh! D. C. Sessions beat me to it. *Sigh*

  • abb3w


    And at the time of Roe v. Wade, the plurality opionion in the USA regarding abortion was “meh.”

    That’s not what the 1973 GSS indicates. Roughly five-in-six Americans had heard the decision, and those who had were already about as polarized as today.

  • jamessweet

    In your assessment of the likelihood of the second possibility, you have to take into account that Ginsburg has on multiple occasions publicly expressed exactly that opinion of Roe v. Wade: That the court got too far out ahead of the populace. It is not even remotely unlikely that Notorious R.B.G. would both a) rule in favor of marriage equality if she had to, and b) strongly prefer that the court not do that for another decade or so.

    Whether the other liberal judges could be talked into her way of thinking is a matter that is open for debate. But Ginsburg’s thoughts on the matter are pretty well-known.

  • pocketnerd

    Thus Spake Zarajamessweet , #24:

    In your assessment of the likelihood of the second possibility, you have to take into account that Ginsburg has on multiple occasions publicly expressed exactly that opinion of Roe v. Wade: That the court got too far out ahead of the populace.

    I have great respect for Justice Ginsburg, but that attitude is bullshit. “Not yet! Too soon!” is always the anthem of the well-meaning but comfortably unaffected. It’s not the Supreme Court’s job gently to shepherd us to justice and equality at whatever pace we find comfortable; if making the right decision puts them “too far out ahead of the populace”, well, so be it. If the Warren court had been afraid of getting “too far out ahead” on the Loving vs. Virginia decision, anti-miscegenation laws would have stood until the 1990s.