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.