At the outset, it is important to understand that the Supreme Court has discretionary jurisdiction. That is, it selects the cases it will decide. On average, it agrees to decide only about 1 percent of the cases that are presented to it for review. For the Court to agree to hear a case, four of the nine justices must vote to put the case on the Court’s docket. If the Court does not agree to hear a case, then the judgment of the lower court stands. In general, the justices vote to consider a case if one of two conditions is met: (1) if the lower courts are divided on the issue, or (2) if the issue is of such importance that it merits the Supreme Court’s attention even if there is no division in the lower courts.
Because all of the federal courts of appeals that have considered this issue have agreed that state laws prohibiting same-sex marriage are unconstitutional, the key question is whether the issue is sufficiently important to warrant the Court’s attention. No one doubts that the same-sex marriage issue is of that level of importance. Nonetheless, the justices exercised their discretion not to decide the question. Why?
One thing seems clear to almost all observers: In light of the Court’s five-to-four decision a little over a year ago in Windsor v United States, in which the Court held the federal Defense of Marriage Act unconstitutional, it is virtually certain that the five justices in the majority in Windsor (Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) would take the next obvious step and hold state laws prohibiting same-sex marriage unconstitutional as well. Indeed, that is why lower federal court judges have been almost unanimous since Windsor in reaching that result.
With that understanding, it is obvious why none of the four dissenters in Windsor (John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito) voted to hear this round of cases. Why would they want the Court to hear the cases when they know full well that the majority would reach the “wrong” result?
But why did the justices who were in the majority in Windsor also vote not to hear these cases? The answer, made clear by Justice Ginsburg in recent interviews, is that they would rather let the issue percolate further in the states and the lower courts so that by the time the Court finally addresses the issue it will be much ado about nothing. Why put the Supreme Court out on a limb, when they don’t have to? Why risk a “backlash” against the Court for making a controversial decision when they can just dawdle until it’s no longer controversial at all?
Perhaps the best precedent for this sort of behavior was when the Supreme Court delayed thirteen years after its 1954 decision in Brown v. Board of Education, which held “separate-but-equal” racial segregation unconstitutional, before it finally got around to invalidating the most emotionally inflammatory form of racial discrimination — laws prohibiting interracial marriage. By the time the Court decided Loving v. Virginia in 1967, “only” 17 states still prohibited interracial marriage.
There are two serious problems with this strategy. First, just as the Court’s hesitation on miscegenation meant that thousands of interracial couples could not lawfully marry in many states in the United States, the Court’s hesitation here leaves thousands of same-sex couples in states throughout the nation without the opportunity to marry. That is no small cost to those individuals, to their families, and to their dignity.
Second, and even more important, the “inevitable” decision to invalidate all state laws denying same-sex couples the freedom to marry is not, in fact, inevitable. It is all too easy to imagine a scenario in which one of the five justices in the majority in Windsor dies before the Court finally takes up the issue, a Republican is elected president in 2016, and the five-to-four majority to protect the right to marriage equality fades into oblivion. Then a new five-to-four majority, including the four dissenters in Windsor and their new companion appointed by, say, President Christie or President Paul or President Cruz, find that there is, after all, no constitutional right to same-sex marriage.
At that point, the tens of thousands of same-sex couples who will marry in the next year or two will find the legality of their marriages suddenly open to question. And going forward, for years to come, supporters of marriage equality will be back to slogging it out, state-by-state, in a long, slow, bitter, and ugly process.
This scenario may be unlikely, but the five justices who know right now that laws forbidding same-sex couples to marry are unconstitutional should not have left us in this position. This was an unnecessary and, in my view, a reckless risk for them to take.