SCOTUSblog On What Could Happen Next

Lyle Denniston writes at SCOTUSblog:

It would be hard to find a close, or perhaps even a casual, observer of the Court who would predict with any confidence that the Court will deny review of all seven pending filings on same-sex marriage, from five states. The Court actually has been quite active on the issue this year: on three occasions, it has temporarily blocked lower court rulings that would have cleared the way immediately for same-sex marriages to begin or to be recognized, in Utah and Virginia.

Those orders suggest, if they don’t actually prove, that the Court is preserving either a chance for the issue to be explored further in lower courts without thousands of new same-sex marriages occurring, or a chance for the Justices themselves to weigh in on the issue before that happens.

Moreover, it would only take the votes of four Justices to grant review of any one of the seven new petitions, and there are four Justices who strenuously objected in dissent last year when the Court struck down a key part of the federal Defense of Marriage Act — a ruling that actually set off nearly three-dozen rulings by lower federal courts, striking down (with only one exception) state bans on such marriages.

When the Court privately discusses the new cases, as it almost surely did at last Friday’s closed-door Conference, it would not be hard to predict that those four Justices would be arguing energetically to take on the issue, provided that they had some reason to hope that, after such a review, they might gather a fifth, majority-making deciding vote from another Justice.

Those four Justices also surely know that, if the Court does opt to deny review of all of the cases at this point, such a denial would trigger the full implementation of appeals court decisions that would spread in a short period of time to eleven more states beyond the nineteen (along with Washington, D.C.) that currently allow same-sex marriage. That would almost certainly add an inevitability to the campaign to win same-sex marriage rights across the nation.

So, after the silence on Thursday, the focus now turns to Monday. The new list of orders, mostly denials, will emerge first and, before the end of the day, the Court will indicate whether it is rescheduling the same-sex marriage cases for another look, at a private Conference set for next Friday morning.