A whole bunch of people are asking why SCOTUS punted on Monday, allowing to stand the various Circuit Court rulings overturning of several state bans on same-sex marriage on Constitutional grounds.
Answer is simple. It's a compromise. And it has everything to do with Justice Kennedy.
Here's what I've come up with having had a day to think about it: you need four justices to grant a review for a case (cert). If the four liberal justices who sided with Kennedy on striking down DOMA were confident Kennedy would join them and that they had five votes, they would have taken up the case in a heartbeat. Likewise, if the four conservative justices were confident Kennedy would side with them, they certainly would have taken the case.
Now, you would think given the usual impasse (which is "What the hell will Kennedy do this time?") they'd all decide it was worth taking up the cases and deciding for the nation. But that didn't happen, which means there's a reason why.
The why is that I believe Justice Kennedy made it clear that he was going to take his decision on DOMA to its logical endpoint: giving LGBTQ Americans protected status as a minority, meaning that they would be protected from discrimination under a number of existing laws and the four liberal justices were going to back him. I think Roberts worked out a deal where SCOTUS then punted to keep that from happening, with the understanding that the other justices wouldn't interfere with Circuit Court decisions overturning these state bans on same-sex marriages. This would immediately put same-sex marriage into effect in a number of states, and did.
In other words, SCOTUS is saying "Hey, remaining Circuit Courts, we expect all of your guys to come to the same conclusion on this issue." Liberals get same-sex marriage now, instead of next June. Conservatives avoid a Kennedy decision that gives LGBTQ Americans special status under the law across the board.
The turd in the punchbowl is the Fifth Circuit, heavily stocked with conservatives. If they uphold Texas's ban on same-sex marriage when all of the other Circuit Courts rule to overturn various state bans, then SCOTUS can no longer punt. (It's also possible the 11th Circuit could do the same thing with Georgia's ban, or on an outside shot, the 6th Circuit with Ohio's ban.) That would force SCOTUS to take up the case and issue a ruling next year sometime (probably June).
But it would also completely mess up existing same-sex marriages in the states where SCOTUS punted on Monday. I don't think they'd do that unless they had to.
Thing is, the Fifth or 11th Circuit may force it.
We'll see. Meanwhile, there's evidence that Republicans have effectively given up on blocking same-sex marriage because it's bad politics.
I don't buy it yet, but as I said, we'll see.
I'll go one better: the political effect for the Republicans if the Supreme Court took up the case. The conservatives feared that Justice Kennedy would give LGBTQ people "protected class" status - and the liberals feared that this would be "a step too far" (following the Roe v Wade "common wisdom"), leading to a conservative backlash. Thus, nobody wanted to grant cert.
ReplyDeleteAfter the next presidential election is when the Supremes will want to hear the case...
Zandar, I take off my hat to you. This is without question the most cogent political analysis that I have read all year.
ReplyDeleteWhich is a small victory for the whole blogging project, the point of which was to give a voice to analysts like you. I just wish that your voice was a whole lot louder, and that David Brooks & his cronies would commence to STFU.