Justices Embark on Road to a Ruling on Same-Sex Marriage

Date: 

Wednesday, October 1, 2014
SEPT. 29, 2014 Sidebar| By ADAM LIPTAK| The New York Times| 
 
WASHINGTON — There are lots of open questions about the road the
Supreme Court justices will take to a final decision about whether the
Constitution guarantees a right to same-sex marriage. But one thing seems
clear: The answer will arrive next June.
The endgame started Monday morning. At their first private conference
of the term, the justices were scheduled to consider, among many other
things, seven petitions urging them to hear appeals from decisions striking
down bans on same-sex marriage.
In an unusual move, the same-sex couples on the winning side of those
cases joined their adversaries in asking the Supreme Court to settle the
question, nationally and once and for all.
The justices face complicated choices about which case to accept, and
when. They could announce their choices as soon as this week and hear
arguments as soon as January.
Or they could sort and sift and wait for other courts to rule. The last
time the court heard cases on same-sex marriage, in 2013, they were argued
in March. The last argument session of the term is in April.
The justices could hear a single case or all of them. They could schedule
one hour of arguments or several. They could ask for separate arguments on
various legal theories.
So many variables, but one bottom line: “I think the court is going to
give a definitive answer this term,” said Irving L. Gornstein, the executive
director of Georgetown’s Supreme Court Institute.
The justices are not starting from scratch. They immersed themselves in
the legal issues surrounding same-sex marriage last year, though they ended
up ducking the question of what the Constitution had to say about it. Why,
then, will it most likely take the whole term to render a decision this time?
The justices often say that decisions are issued as soon as the opinions
are ready, and former Supreme Court law clerks confirm this.
“I can’t think of an instance, certainly during my term, that the court sat
on an opinion when it was done,” said Geoffrey R. Stone, a law professor at
the University of Chicago who served as a clerk to Justice William J.
Brennan Jr. “It’s inconceivable.”
Yet the biggest cases seem to land at the end of June, just before the
court’s summer break.
In 2013, for instance, the three final days of the term felt like the
judicial equivalent of sweeps week on network television.
Monday: affirmative action. Tuesday: voting rights. Wednesday: gay
rights.
The answer may be as simple as human nature. “The court uses as
much time as they have to decide the really important cases,” said Deanne E.
Maynard, a lawyer with Morrison & Foerster who served as a law clerk to
Justices Lewis F. Powell Jr. and Stephen G. Breyer.
The end-of-term crunch for big cases is the subject of a new study to be
published in The Duke Law Journal. Though the study considered 7,219
cases from 1946 to 2013, it turned out to be surprisingly hard to show with
data what everyone knows from experience.
The question is not, after all, whether any particular case is more likely
to be decided late in the term — more than 30 percent of the court’s
decisions are issued in June and more than half of those in the last week of the month.
The question, rather, is whether big cases are disproportionately likely
to come late. That requires, for starters, an objective definition of
significance. The study used several measures, including coverage on the
front page of this newspaper, the number of friend-of-the-court briefs filed
and how often the decision was cited in later Supreme Court opinions.
All of those measures confirmed that big decisions were
disproportionately likely to come in late June.
But perhaps big cases are also more complicated and divisive, meaning
that it would take longer to decide them whether they were significant or
not. They are, the study concluded, but this explained only part of the
phenomenon.
The study’s authors — Lee Epstein of Washington University in St.
Louis, William M. Landes of the University of Chicago and Judge Richard A.
Posner of the federal appeals court in Chicago — offered three possible
reasons for waiting so long to decide the biggest cases.
One is that justices keep polishing the opinions that will define their
legacies until the last possible moment. (Indeed, as Prof. Richard J. Lazarus
of Harvard Law School demonstrated recently, some keep polishing years
later.)
A second possibility is that releasing several major decisions in quick
succession, some liberal and some conservative, “may tend to diffuse media
coverage and other commentary of any particular case, and thus spare the
justices unwanted criticism.”
Or perhaps the explanation is more personal: “The justices, most of
whom have busy social schedules in Washington, may want to avoid
tensions at their social functions by clustering the most controversial cases
in the last week or two of the term — that is, just before they leave
Washington for their summer recess.”
The court has released its calendar for the new term, and it may contain
all the data you need to predict when the court will determine whether there
is a constitutional right to same-sex marriage. The last day on the schedule
is June 29, 2015.