Updated, October 8
I once heard the late Daniel Schorr describe the difficulty of covering the post-Stalin Soviet Union, a dreamlike mirror world of shadows and symbols where important changes might be signaled by the seating chart at a state dinner or the choice of music on Radio Moscow's evening classical program.
Schorr would have felt right at home in the U.S. Supreme Court, which determinedly refuses to explain itself to the public, and the operations of which are ill-suited to speed. The Court’s procedure is so complex that even experienced hands are often puzzled, and it has sometimes been suggested that everyone who could understand a given question is dead.
So everyone was a little confused by Justice Anthony Kennedy’s order, issued Wednesday morning, “staying the mandate” of the Ninth Circuit’s decision in Latta v. Otter, which held invalid gay-marriage bans in Nevada and Idaho.* Latta came down Tuesday, one day after the high court had denied every pending petition appealing similar orders in other circuits. Each justice is responsible for one of the federal appeals courts, and Kennedy, a Californian, supervises the Ninth. He issued an emergency stay and asked the plaintiffs to file a response by Thursday.
Why would the Court deny petitions on Monday and grant a stay on Wednesday?
Inside the Court’s sanctum, abstract questions of procedure and jurisdiction seem more real than those of human life and practical politics—and certainly those of informing the public. Granting stays is an abstract process, and it involves nine willful justices.
Here’s how it may look to some of them: The states of Indiana, Oklahoma, Utah, Virginia, and Wisconsin had cases before lower courts. They lost. They then petitioned the Supreme Court for review—a painstaking process involving a detailed petition, a closely reasoned response, and amicus briefs urging the Court to take or deny the case. All these documents were filed, and the justices reviewed them at their September 29 conference. They decided to deny them. That denial, every first-year law student knows, had no legal significance for the same-sex-marriage issue; the Court simply decided not to decide at that time. The practical significance was huge, however. The stays granted during the petition process disappeared and couples began to marry.
A day later, the Ninth Circuit opinion struck down bans in Idaho and Nevada. Nevada officials announced that it was over. They want no appeal. Idaho officials indicated that they would fight on. Early Wednesday morning, they filed an urgent request for a temporary stay. By 10 a.m., Kennedy had granted the emergency stay. From its title, it is only the stay requested by Idaho. But in its body, it recites the case numbers of the Nevada case too.*
Nevada had not asked for a stay. Its case was quite different from Idaho’s—they are only together in the Ninth Circuit’s opinion. It’s far from clear that the Court has jurisdiction to stay the mandate in a case where there is no request to do so. On the other hand, the joint case produced only one mandate; one could argue that a stayed mandate means that the law of the Circuit is uncertain. Officials in Nevada have wisely announced that they are holding off for the moment on granting marriage licenses. On Wednesday afternoon, Kennedy ended the stay for Nevada, leaving the Idaho restriction in place.
The emergency stay will be in effect only until the Court gets the plaintiffs’ reply Thursday. Kennedy can either grant or dissolve the stay, or (more likely) refer the application to the full Court for a prompt decision. The standard in either case is, according to precedent, this: How likely is it that four justices will think this case worthy of hearing? That standard was met by the three previous cases—which were then denied. But like the Kremlin seating chart, a stay in this case would not mean nothing.
As Lyle Denniston of SCOTUSblog immediately detected, Thomas Perry, counsel to Idaho Governor Butch Otter, has packaged his particular appeal in language that makes it possibly different from the three cases the Court denied Monday. The reason is this: In its opinion yesterday, the Ninth Circuit panel did not simply follow United States v. Windsor in its reasoning. It went further, deciding that all legal distinctions based on sexual orientation are subject to what lawyers call “heightened scrutiny”—that is, they are presumptively unconstitutional, almost like distinctions of race, religion, or sex.
Despite numerous opportunities to do so, Kennedy has never been willing to designate a “level of scrutiny” for sexual orientation. His opinions are determinedly vague on what standard he is applying. Even if—as I suspect—Kennedy is now a confirmed vote to allow same-sex marriage, the standard-of-review question has implications for cases involving employment, public accommodations, and religious freedom. If four justices want to decide that issue, Idaho says, here’s their chance.
Monday I wrote that, in my best guess, the same-sex marriage battle is “over” inside the Court. Even if I am right, that doesn’t mean all legal questions are resolved. Sooner or later, in one form or another, those other questions will reach the Court. If in the interim the rest of us are left stumbling in the dark, well, the justices are pretty well oblivious.
* This post originally stated that California was included in Kennedy's initial stay. We regret the error.
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