Adam Liptak of the New York Times has a fascinating speculation about clues from the oral arguments in the gay marriage case about why cert was granted.
A couple of points needed to understand the piece: First, while it takes five votes to win in the Court, only four are required to get review. Second, the overturning of a federal statute such as the Defense of Marriage Act was far more likely (as close to certain as Supreme Court review gets) to be taken up by the Court, so that case was headed up. The question is why the Court took the Prop 8 case, taking two cases in roughly the same area rather than doing one and holding the other for possible remand based on the one they took, a more usual process.
Liptak thinks that Scalia voted with Alito and Thomas to grant Prop 8 not because he thinks he’s going to win, but because he thinks his chances won’t improve in the future, and because he was afraid of Kennedy writing the DOMA case if it stood alone and saying things that would later give himself encouragement to go against Scalia on the bigger issue.
Here’s the evidence he cites for the Scalia vote:
As it turns out, it would seem that the conservative members of the court, making a calculation that their chances of winning would not improve with time, were behind the decision to take up the volatile subject.
The aha moment came on Tuesday.
After Justice Anthony M. Kennedy suggested that the court should dismiss the case, Justice Antonin Scalia tipped his hand.
“It’s too late for that now, isn’t it?” he said, a note of glee in his voice.
“We have crossed that river,” he said.
That was a signal that it was a conservative grant.
That leaves the question of the fourth vote. The most likely answer is that it was that of Chief Justice John G. Roberts Jr., though he did not sound at all pleased on Tuesday to have the case before him.
There is also a chance that the fourth vote came from Justice Kennedy himself, and his very questioning provides support for that theory.
“I just wonder,” he said, sounding a little plaintive and a little angry, “if the case was properly granted.”
According to “Supreme Court Practice,” the leading manual on Supreme Court procedure, it is bad form for a justice who voted to deny a petition to thwart a decision on the merits.
“The reason strikes deep,” Justice William O. Douglas explained in 1952. “If four can grant and the opposing five dismiss, then the four cannot get a decision of the case on the merits.”
The whole thing is worth reading.