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Monday, October 06, 2014

Is it unseemly for SCOTUS to wait? (Updated)

Calvin Massey tries to figure out why SCOTUS declined to take a marriage-equality case. One possibility he offered is that "the Court is just avoiding the issue, hoping that the circuit courts will do the job for them," a possibility Massey calls "unseemly."

But is it unseemly and, if so, why? One reason to have "One Supreme Court" is to ensure uniformity of federal law. But if that uniformity comes anyway, is it really necessary that SCOTUS speak (or, as Dahlia Lithwick put it, lead) on any particular issue? Is there anything inherently wrong with SCOTUS waiting for a circuit split or for a circuit to get it "wrong"? Especially when the denial of cert. drops such a big hint to lower courts (particularly the Sixth Circuit, which seemed, based on oral argument, to be most inclined to uphold a state ban) to fall in line or risk being reversed later in the term?

Update: Neil Siegel frames the denials in line with the halfway decision in Windsor, as a Bickelian Court deciding as little as possible while dropping hints to direct the further conversation. Pivoting off that, it shows that our understanding of Bickel and passive virtues must be court-specific. Whereas Bickel likely imagined leaving the national conversation to the political branches and outside the Article III judiciary, here, it is unlikely any states will be suddenly motivated to legislate marriage equality. Instead, the conversation that SCOTUS is encouraging is in the lower federal courts, tasked with reading tea leaves (in Windsor and now in the cert. denials) and moving the discussion forward.

But is that what Bickel had in mind? Certainly multiple regional districts and circuits allow more "national conversation" and evolution than one final-and-thus-infallible decision of one Supreme Court. But these decisions still are being made by the same body of unelected-and-unaccountable life-tenured federal judges, drawn from the same pool and sharing the same orientation as the members of SCOTUS. That seems a very different conversation from the one Bickel imagined in promoting, for example, standing (which applies to all federal courts).

Posted by Howard Wasserman on October 6, 2014 at 05:27 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


An interesting historical parallel on the unanticipated consequences of a non- ruling: After the Supreme Court decided Brown v. Board of Education, various lower courts considered the question of whether segregated water fountains, bathrooms, and similar accomodations were unconstitutional. The reasoning of Brown might not apply to water fountains, since Brown focused on the impossibility of "separate and equal" for school systems. "Separate and equal" is trivial for plumbing. Lower courts generally found such practices unconstitutional, at least where interstate commerce was involved. There wasn't a full Supreme Court opinion. The Civil Rights Act 1964 resolved the issue for good.

A few years later, the Equal Right Amendment was introduced to put gender equality on the same plane as racial equality. The most effective popular opposition campaign raised the issue of whether gender segregated public bathrooms would become illegal. This was a highly unpopular concept. There wasn't a clear Supreme Court opinion for either side to point to, and in part because of the uncertainty, the Equal Rights Amendment failed.

Posted by: arthur | Oct 7, 2014 9:53:14 AM

I don't think there would be anything wrong with the SCT not speaking on an issuing or waiting for a circuit to get something wrong before visiting an issue if the point is to conserve resources and effort. But that is not what is happening. What is happening is that they are using the denial of cert to drop what you call "a big hint" without having the courage to actually say that hint out loud. That is unseemly.

Posted by: TJ | Oct 6, 2014 9:29:55 PM

I think it would have been logical for the USSC to wait for the 6CA, whose ruling I assume will be sooner than later (as compared to perhaps other circuits not on record yet) to see if there was a circuit split there.

But, as you say, the denial sends a message to them. Lyle Dennington at Scotusblog also discussed why denial was somewhat strange, which also probably advances this conversation.


Posted by: Joe | Oct 6, 2014 6:45:54 PM

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