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Monday, February 09, 2015

Justice Thomas on Signaling in SSM Cases

In a few posts, I’ve discussed Supreme Court “signals,” defined as instances when “the Justices undertake official actions that don’t establish conventional precedent or resolve ultimate merits issues, but nonetheless suggest, perhaps deliberately, some aspect of how lower courts should decide cases.” One of my examples had to do with the  Court’s unusual cert orders in same-sex marriage cases, which seemed like a signal that the challengers had very strong cases indeed. Today, the idea of a "signal" in this area became quite salient, as Justice Thomas expressly referred to signals in criticizing the Court’s latest same-sex marriage order. 

This morning, in Strange v. Searcy, the Supreme Court denied Alabama’s request for a stay of an order to permit same-sex marriage. Justice Thomas, joined by Justice Scalia, wrote an impassioned and thoughtful dissent from this decision. A large chunk of Justice Thomas’s opinion argues that the Court had previously granted stays to States in positions that resembled Alabama’s. Right after making that point, Thomas went on to make a claim about signaling. Here it is, with underlining added:

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 preserve 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). 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.

The idea here is that denying Alabama’s stay application is an irregular action and therefore strongly signals—to lower courts, but also to the public and to potentially recalcitrant state officials—that the Court has adopted a particular view of the underlying merits. Indeed, many commentators have already noted that Thomas’s dissent seem to take it for granted that a majority of the Court has come to a decision on same-sex marriage. But what’s especially relevant here is Thomas's claim that the majority's apparent “signal” is “indecorous” and “not the proper way to discharge our Article III responsibilities.” Why might this be?

From one standpoint, the main problem with signals is that they can be misinterpreted or misidentified. This special risk arises because signaling lacks the normal rigor and trappings of full dress rulings on the merits. For that reason, I’ve noted the possibility of approving and heeding Supreme Court signals only when they are clearly and/or deliberately conveyed. But that isn’t the nature of Justice Thomas’s lament. Indeed, he seems to be assuming in the passage above that the signal is accurate and deliberate.

But it’s also possible for signaling to be illegitimate as to particular messages, regardless of the accuracy or deliberateness of the message. For instance, I’ve noted that signaling might seem especially tenable in connection with rulings that are thought to be highly discretionary and pragmatic, like the scheduling of a particular hearing. By contrast, signaling might seem especially problematic in connection with interpretive rulings on the meaning of legal texts. Interpretive rulings and other decisions on the merits typically go to the core of judicial duty and might properly be governed only by precedents springing from a careful and rigorous judicial process.

Justice Thomas seems to be pursuing this second kind of restriction on signaling, at least in connection with same-sex marriage. That is, he seems to object to the idea that the Court would unofficially decide the constitutional question of same-sex marriage—undeniably among the most important legal issues of recent decades, if not the Court’s entire history—without going through the standard process of briefing, argument, deliberation, and opinion-writing in that very case.

It’s pretty easy to think of both pros and cons to signaling about same-sex marriage, at least if you spend a minute or two imagining that you’re on the other side of the issue. For instance, signaling allows the Court to accelerate many of the benefits of its intended ruling--a major perk--without actually rendering a binding decision on the merits. This approach honors most of the Court's formal procedural rules (though, Justice Thomas complains, perhaps not all of them) and leaves open the possibility of changing course after testing the waters and then going through full and normal deliberation. On the other hand, the Court’s unofficial decision can come across as “disrespect” (Thomas’s term) for the losing side, while more generally eroding confidence that the judicial process actually matters. In addition, issuing early half-decisions creates a heightened risk of error as to the very merits holdings that are most important to protect through scrupulous adherence to the judicial process. 

With Justices now talking explicitly about signaling, we likely haven’t seen the last signal in OT 2014.

Posted by Richard M. Re on February 9, 2015 at 02:04 PM | Permalink


The fact that every son or daughter of a human person can only be a human person, and that only a man and woman can exist in relationship as husband and wife, does not depend on location.

Posted by: N.D. | Mar 4, 2015 7:29:51 PM

I am in sympathy with Jasper Emiliano, Jr.'s position, including the last point. I'm not really overly upset, honestly, with same sex marriages going on now. But, especially since Windsor was handed down a couple years ago, equally honestly, waiting to the end of the term would not be some horrifying result. It would be terrible for a few sad cases such as those dying. Any delay of rights in that respect will have victims -- see how "all deliberate speed" worked.

All the same, the "irreparable harm" standard here is not really being applied evenhandedly as shown by Thomas' vote in the abortion and voting rights cases that were subject to USSC action in the last few months. I would like a full explanation of his votes there before accepting this as some sort of principled result.

Posted by: Joe | Feb 11, 2015 12:20:20 PM

@Orin Kerr: Isn't the horse already out of the barn on that issue, given that the previous stays on several federal court orders all ended in October when SCOTUS declined to hear appeals on those cases?

Posted by: Scott_MI | Feb 11, 2015 12:01:52 PM

I'm a supporter of SSM, but I absolutely agree that the decisions should have been stayed (and I happen to think that SCOTUS totally screwed the pooch in how it handled the SSM cases, all of which could easily have been relisted into perpetuity until/unless a Circuit split developed). That said, Thomas's *reason* for imposing a stay--that states almost automatically satisfy the irreparable harm burden--is one that has developed through its own echo chamber, as fairly persuasively shown during the controversy over the Fifth Circuit's abortion rulings. Right result, wrong reason.

Posted by: Jasper Emiliano, Jr. | Feb 11, 2015 11:55:55 AM

I am sure that Justice Thomas is genuinely upset, but his dissent was itself a nice strategic gambit. One of the upsides of accusing the rest of the court of prejudging the case is that you might get some or all of them to respond with an opinion of their own stating that they are doing no such thing, the existence of which might move the dial marginally in the effort to convince the other conservative justices to reject a right come the merits argument.

Posted by: Andrew Siegel | Feb 10, 2015 1:22:57 PM

I wonder if part of Thomas's concern is that the Court's signal today may be part of the Court's rationale tomorrow. When the Court recognizes a right to same-sex marriage on June 30th, 2015, the Court's opinion may very well point out that same-sex marriage is already the law in 43 states (or however many it will by then), including in states such as Alabama, and that it seems to be working well. Thus, the Court may say, its decision is simply recognizing an already-existing reality rather than making a departure from the status quo. If you're Justice Thomas, denying the stay might seem "indecorous" because it's kind of stacking the deck: It's helping to create the reality today that will then be used as a reason for a result announced tomorrow but that was already reached yesterday. A possibility, at least.

Posted by: Orin Kerr | Feb 10, 2015 12:14:38 AM

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