September 25, 2012
By Scottie Thomaston
The Supreme Court just issued its orders from yesterday’s “long conference”, the conference that takes place after the Court’s summer recess. There were a few cases granted, but neither Perry, the Prop 8 case, nor Windsor, a DOMA case, were granted today. And as of this writing, the Supreme Court docket for both cases still show that the case was distributed for this conference. Whether the Justices re-listed the case for another conference or are planning to deny a writ of certiorari to hear the case is uncertain at this point.
Another case affecting gay rights, Brewer v. Diaz was also ready for the conference yesterday, but the new order list does not show a grant of certiorari in that case either. There, Governor Brewer is challenging a preliminary injunction before a trial is heard on the constitutionality of a new law taking away benefits from same-sex domestic partners in Arizona.
There are several cases challenging Section 3 of DOMA, but the only one that was ready for yesterday’s conference was Windsor v. USA. The Court still has to act on the Gill/Massachusetts case, the Golinski case, and the Pedersen case. In all those cases, both the plaintiffs and the Justice Department filed petitions for a writ of certiorari (except Golinski, where only the Justice Department filed one), and in Windsor, Pedersen, and Golinski, they filed before judgment by the appeals court, telling the Supreme Court that the cases raise nationally important issues. Some of those cases won’t be ready until the conference on October 5 and some later than that.
Update (Jacob): Just wanted to respond to something I noticed in the comments that I think has been a cause for some confusion. The actual text that appears on the Supreme Court’s docket is the following: “DISTRIBUTED for Conference of September 24, 2012.” I don’t mean to nitpick too much (disclosure: I was an English major in college, so I’m prone to over-analysis) but all that means is that the materials were handed out so that it could be considered in the September 24 conference. That doesn’t mean it definitely was, and a new docket listing would only show us that it had been re-distributed. Those notes on the docket aren’t an assurance that the Court is considering it on that specific day.
Update 2 (Scottie): The Supreme Court’s Public Information Office tells me that on Monday, the rest of the orders will be released, and that is when we are likely to find out whether it was denied or re-listed.
Update 3 (Scottie): Lambda Legal’s Jon Davidson tells me:
The Supreme Court’s today issued a brief list of cases in which review has been granted, which did not include the Perry case, the Windsor challenge to Section 3 of DOMA, or our Diaz v. Brewer case involving domestic partner health insurance benefits for Arizona state employees. The court did not yet issue a list of cases in which review has been denied or in which it has decided to defer making a decision. That list is expected on Monday. There could also be additional cases in which the Supreme Court has decided to grant review at this time that will be announced on Monday.
But, I heard yesterday that the Supreme Court had actually decided not to discuss the Perry case at yesterday’s conference of the justices, so I do not expect anything substantive to be announced about Perry on Monday. I have not heard anything at this point about exactly when the Supreme Court will discuss among themselves whether or not to grant review in the Perry case, or whether or when it will let us know when it will be discussed. The Court does not provide its reasoning regarding when it is making its decisions about most of these matters, and its discussions are kept highly confidential.
At this point, it’s anyone’s guess about exactly when the Supreme Court will announce whether or not it will grant review in any of these cases. I have heard speculation that the Court might wait to decide whether or not to hear the Perry case until it decides whether or not to hear one or more of the challenges to Section 3 of DOMA.. I’ve also heard speculation that the Supreme Court may not decide which, if any, of the challenges to Section 3 of DOMA to hear until the briefing is final in all of those challenges (including the Department of Justice’s most recent requests that the Supreme Court hear the Pedersen case, if it doesn’t grant review in Gill/Massachusetts or Golinski and that the Court hear the Windsor case if it doesn’t grant review in an of the other cases). That briefing will not be done until the latter part of October and the Supreme Court therefore may not issue any announcement about what it will do in any of these cases until after the election. Again, this is speculation, as the Supreme Court keeps its deliberations about which cases to hear secret.