Thursday, November 13, 2014


Divining the Court

A brief note:

On November 10, Justice Sonia Sotomayor granted a temporary stay to the State of Kansas to prevent the immediate implementation of same-sex marriages in the state.

This was similar, indeed, legally speaking, identical, to what happened back in October with Idaho's request for a stay on same-sex marriage. Then, Justice Kennedy granted a temporary stay which, after submissions, was immediately dissolved by the full court. No dissents were noted. It seemed a routine "Yes, yes ... we'll listen to you but now go away" exercise.

Between the Idaho and Kansas requests, however, the Sixth Circuit came down with its decision upholding same-sex marriage bans in Michigan, Kentucky, Ohio and Tennessee.

The stay in Kansas' case was also dissolved when submitted to the full court ... but with two, and only two Justices dissenting. Unsurprisingly, the dissenters were Justice Scalia and Justice Thomas.

Now here is where the reading of SCOTUS tea leaves gets tricky and why it such a dangerous profession: the previous order dissolving the Idaho stay didn't note any dissents but this time, after the Sixth Circuit's decision, dissents were noted ... but by only two Justices.

Does this tell us anything about what will happen when the court, it now seems inevitably, decides the issue? Could we have a 7-2 ruling in favor of same-sex marriage as a constitutional right? I've long suspected that Justice Roberts doesn't want to be known as the 21st Century's Roger B. Taney. Could Justice Alito now be willing to hold his nose and, based on precedence, as in Lawrence, Windsor and Loving, be willing to go along?

Oh, well, only time will tell.

Update: Lyle Denniston at SCOTUSblog has some more information on the Court's tea leaves. Specifically:
In a separate opinion they [Justices Thomas and Scalia] issued in a case having nothing to do with the marriage controversy, Justice Thomas wrote that, “for reasons that escape me,” the Court had not agreed to review lower court decisions striking down state bans on same-sex marriage laws.
I'll piously pass over the "for reasons that escape me" straight line and just suggest you go read Denniston's post.

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