September 13, 2012
By Jacob Combs
The first conference of the Supreme Court is scheduled for September 24, and Prop 8 is likely to be making big news soon, either with the Supreme Court considering the case or marriage equality returning to California. But the timeline of when such an announcement will be made, as well as what it will say, can seem opaque and complex at first sight. Here’s a guide for what to expect from Supreme Court as its October term begins.
What the conference is, and what it isn’t
Since the Supreme Court takes a summer recess from late June to late September, cases that are appealed to the Court during that time build up into a backlog. Many of these cases are calendared for the first conference of the year, which will take place on September 24 in advance of the first day of oral arguments at the Court, which are scheduled for October 1. In advance of the conference, the petitions and response briefs that have been submitted in the various cases over the summer are distributed to the justices, who then meet and discuss how to proceed.
As we’ve mentioned before here on P8TT, the Supremes have discretion over which cases they hear, and usually take up less than one percent of the cases that are appealed to them from the circuit courts. It’s important to note that the fact that a case is being considered by the Supreme Court in conference has nothing to do with oral arguments nor does it mean the Court will issue a decision on the merits of the case; rather, it is a preliminary step before such arguments and decisions, and one at which the vast majority are dismissed without further consideration by the Court.
At the conference, the justices will discuss and debate internally whether the Court should take up a specific case for oral argument, or whether a case should be summarily reversed without oral argument. Only four justices’ votes are needed for a case to be considered by the Court in its regular term.
What we’ll hear from the Supreme Court
Following each conference, the Court issues an order detailing the results of the justices’ discussion. There are three outcomes for a case from the Supreme Court, which is asked to take up cases in a document called a petition for a writ of certiorari. A writ of certiorari is essentially the fancy name for the document saying that the Supreme Court will take up a case for appeal–the word means “to make certain” in Latin, i.e., the Supreme Court is taking up a lower decision to make certain it applied the Constitution correctly.
The first possible outcome at the Supreme Court is a denial of certiorari, which means the Court will not take the case and the circuit court’s decision is the final say on the matter. When cases are denied cert (as it is frequently called), they are included in the order in a long list of case names under a heading that says simply “Certiorari Denied.” Usually, the Court offers no further comment on cert denials, although occasionally the order will include a few words explaining that a specific justice took no part in the consideration of the case.
The second outcome involves the granting of certiorari, in which the Court agrees to hear the case and it is placed on the calendar. Cases that are granted cert in September are likely to be heard before the Court’s next recess in June 2013. In the Court’s order following the conference, these cases are listed under a heading that says “Certiorari Granted.”
The final outcome involves a decision by the Supreme Court to remand, or return, a case to the circuit court for further adjuciation. In the Court’s order, these cases are listed under a heading called “Certiorari — Summary Dispositions.” When this occurs, the circuit court’s decision is vacated and the case is sent back to the circuit court for consideration under a specific precedent or legal decision laid out by the Supreme Court. (The circuit court’s new decision could in theory be appealed in turn back to the Supreme Court, although the likelihood of such an appeal being taken up would likely be quite small.)
When the Prop 8 case is considered on September 24, any of these three outcomes could occur. If certiorari is denied, the Supreme Court will not hear the case and the Ninth Circuit’s decision striking down Prop 8 will be final. If certiorari is granted, the Supreme Court will hear oral arguments regarding the case sometime in then next term and then issue a decision on the merits of the case. If the Prop 8 case is remanded, the Ninth Circuit’s decision will be vacated and the panel will have to reconsider the case further pending the instructions from the Supreme Court.
When we’ll hear from the Supreme Court
Generally, the Supreme Court issues orders on Monday mornings at 10 a.m. Eastern time. The Supreme Court used to announced which cases it would take up on the first day of its term (this year, that would be October 1) but lately it has posted orders online the week before to allow for the briefing schedule to begin sooner. This means that the Court could announce whether or not it will take the Prop 8 case on September 25. The days to watch for Court orders, then, are September 25 and the following Mondays, starting with October 1. (It’s worth noting, however, that the Court can issue miscellaneous orders whenever it wants to.)
One wrinkle in this timeline that some legal observers have speculated about involves the Defense of Marriage Act cases currently pending before the Supreme Court. Only one of these cases (Windsor) has been calendared for the September 24 conference. GLAD, which is handling two DOMA cases at the Supreme Court this fall (Gill and Pedersen) doesn’t expect its cases to be conferenced until October 9 at the earliest. Lambda Legal, which is handling the other DOMA case (Golinski) expects its case to be considered at the October 5 conference.
It is possible that the court will wait to consider all of the DOMA challenges together at one conference. (Even though Windsor has already been calendared, the Court can postpone its consideration until a later date.) Some observers speculate that the Court could also wait until that later date to consider the Prop 8 case along with the DOMA challenges. That seems unlikely, however, since the two challenges raise dramatically different legal questions, and while the DOMA cases make sense to consider together, the Prop 8 case could easily be discussed on its own.
What happens with the stay regarding marriages in California
Of course, the most important question of all is: When can marriages begin again in California? If the Supreme Court decides to hear the Prop 8 case or remands it to the Ninth Circuit, the circuit court’s stay (and thus Prop 8 itself) will remain in effect. If cert is denied, however, that will mean that Prop 8 has been permanently struck down. There is, however, a small but essential piece of legal business to take care of once cert has been denied before marriages can begin.
If the Supreme Court denies cert in the Prop 8 case, the Ninth Circuit panel must issue what’s called a ‘mandate’ before Prop 8 is officially off the books. When the Court denies cert, an order will electronically be filed with the Ninth Circuit. The 3-judge panel who struck Prop 8 down would then have to issue the mandate, which would lift the stay and allow marriages to begin.
What this means practically is that there would likely be some delay in between the Court’s order and the time when marriages were officially legal again. The Ninth Circuit would no doubt move quite quickly to do this, but as Lambda Legal’s Jon Davidson pointed out to me, the wise course for gay and lesbian couples looking to marry in California would be to wait until the issuance of the mandate, as opposed to seeking a marriage license as soon as cert is denied. In the event that the Supreme Court does deny the cert request, it seems probable the Ninth Circuit would issue an order detailing a specific time when the mandate would go into effect, and that California officials could thus provide further information about the availability of marriage licenses.
As we have since the very beginning of the district court trial in 2010, Prop 8 Trial Tracker will be closely following this case at the Supreme Court, and we’ll have have breaking news updates as soon as we know whether or not the Court will take up the case. If you have any questions, ask them in the comments below, and we’ll update this post once we have more information!
Many, many thanks to the following individuals whose advice made this post possible: Jon Davidson at Lambda Legal, Chris Stoll and Shannon Minter at NCLR, Carisa Cunningham at GLAD, James Esseks at the ACLU and our own Kathleen