September 24, 2012
Today is the first Supreme Court conference for the Court’s new session, which means that the Justices could decide today if they will take up the legal challenges to Prop 8 and DOMA’s Section 3 sometime in their next term. As of the time this post published (11 a.m. Eastern time), the Court’s docket showed that both the Prop 8 case (now called Hollingsworth v. Perry) and the DOMA case Windsor v. USA had been distributed for today’s conference, when the Justices will confer and vote on whether they will review the case. The votes of four justices are required for a case to be heard by the Court.
I spoke with the Court’s Public Information Office this morning, and was informed that even though the docket notes that the cases were distributed for today, cases are commonly rescheduled for later conferences. When that occurs, the docket website will be updated with a new conference date. (The docket for the Prop 8 case can be found here; the Windsor docket is here.) We’ll be following this story as it develops today and will report here if the cases are rescheduled for a later conference.
Over at The Advocate, E.J. Graff has a good overview of the marriage cases currently before the court, which number five in total: the Prop 8 case (Perry) and four DOMA cases (Gill/Massachusetts, Golinski, Windsor and Pedersen). As Graff notes, the four DOMA cases make similar legal arguments but have important procedural distinctions. The Gill/Massachusetts case has been heard and decided on by the First Circuit, which found DOMA unconstitutional, but the other three DOMA cases have all been petitioned to the Supreme Court before their hearings before the circuit courts to which they belong.
Why? Graff notes that two main points of speculation on the issue. First, because Justice Elana Kagan served as the Obama administration’s Solicitor General when the Gill/Massachusetts cases were being heard, there is a possibility she would recuse herself should the cases come before the high court. (Gary Buseck, the legal director of GLAD, which is spearheading the cases, doesn’t think she needs to, but notes that she might.) Second, the federal government might have asked the high court to hear Golinski for the sake of consistency: the Justice Department argued in defense of DOMA and later against it in the Gill/Massachusetts cases, but always argued against the law in Golinski.)
Of course, anything that anybody writes predicting what will happen before the high court is speculation. But as Graff points out, it seems unlikely that the Court would be ready to issue a broad ruling in the Prop 8 case bringing marriage equality to the nation. It would also seem like a strange move for the Court since the Ninth Circuit explicitly narrowed its ruling to apply only to California, and the legal issue before the Court in its current form is whether California’s withdrawal (through a ballot initiative) of gay and lesbians citizens’ state constitutional rights violates the U.S. Constitution. For that reason, it’s good news if the Court declines to hear the Prop 8 case (and marriages would be able to resume in California); it might not be a great sign if the Court agrees to take up the case.
On the DOMA count, as Graff writes, “everyone I interviewed believes that the Supreme Court will probably–note the probably–strike DOMA section 3.” (Section 3 is the part of the law that limits marriage to heterosexual couples in the eyes of the federal government.) Not surprisingly, legal observers generally agree that the case will come down along the usual party lines: the four liberals (Ginsberg, Breyer, Kagan, Sotomayor) will strike down the law; the four conservatives (Roberts, Scalia Alito, Thomas) will uphold it. The deciding vote will reside with Justice Anthony Kennedy, who wrote the Court’s powerful opinions in the landmark gay rights cases Romer v. Evans and Lawrence v. Texas. Because of that history, there is good reason to believe he’ll vote against DOMA. Here’s Lyle Denniston of SCOTUSblog on the matter (via Graff’s Advocate piece):
“Kennedy, I believe, does not want the court to do anything that he would deem to be undermining his opinion in Lawrence (in which he authored the opinion striking down Texas’s sodomy laws). A ruling to uphold DOMA, I believe, would look to him as a repudiation of not only Lawrence but also his states’ rights/federalism jurisprudence.”
Could the vote hold some surprises? Perhaps–there is speculation that Chief Justice Roberts could vote to strike down DOMA too, especially if Kennedy does as well. Roberts has said he wants the Court to craft opinions that are not decided on narrow 5-4 lines, and he may want the Court to be on the right side of history on this one. Graff also says that “one of [her] experts,” who won’t speak on the record about it, thinks Justice Thomas may come down against DOMA as well. In Lawrence, Thomas wrote that Texas’s ban against sodomy was “uncommonly silly,” although he voted to uphold it. But predicting the famously reticent Thomas’s opinions is a dangerous game.
Many observers believe that the Supreme Court will put off making any decision on the DOMA cases until later this fall, after the election, when all four of the cases have been fully briefed at the high court. The Prop 8 case could very well be pushed off and considered for review with those cases in a few months. As BuzzFeed’s Chris Geidner reports, the next conference after today’s is on October 5, but the Windsor case and the Pedersen case won’t be fully briefed until October 29. The next conference after that at which the cases could be considered would be November 20. We’re on the brink of big news on the marriage equality front, but it might not come quite as soon as we expected.
Update: SCOTUSblog reports that Court today announced new guidelines for the release of orders for this term. According to the Court’s announcement, orders will now be released at 9:30 a.m. Eastern time. Previously, they were released at 10 a.m.