March 01, 2015

Advance Sheet: Not to Decide Is to Decide—Sort of

The method behind Supreme Court madness on same-sex marriage.

Robert E. Shapiro

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The decision of the United States Supreme Court last fall not to grant certiorari in several different cases regarding gay marriage came as something of an early surprise during the 2014–2015 term. But a moment’s reflection led many observers to sport a knowing smile and to nod sagely. By not deciding the matter, the Court left standing the decisions of courts of appeals to strike down state statutes banning gay marriage. Although Supreme Court rules caution that a denial of certiorari should not be construed as a substantive decision, the High Court seemed to be saying that it was satisfied with the results below. By not deciding the matter, the Court had, practically speaking, decided it. But it had done so with what might be called “plausible deniability,” keeping itself removed from the storm of public debate. An elegant solution to a daunting problem.

Elegant, perhaps, but ultimately foolhardy, some might say. Whom did the Court think it was fooling? Hadn’t it merely increased uncertainty by deciding not to decide? And for how long would this approach work? A Supreme Court decision on the question of the constitutionality of statutes prohibiting gay marriage was inevitable, no? Right on cue, just a few weeks later, a Sixth Circuit panel upheld state laws banning gay marriage. See DeBoer v. Snyder, 2014 U.S. App. LEXIS 21191 (6th Cir. Nov. 6, 2014). The resulting split in the circuits needed to be resolved. The Court could not duck the issue permanently, critics argued. Even if it had allowed the division to continue for a time, sooner or later the Court would have had to face the issues presented by gay marriage under the Constitution.

Perhaps. Splits in the circuits are not fatal. Maybe all other courts would have lined up on one side of the issue. Indeed, most did. Other courts of appeals that had not decided the issue could read the tea leaves too, and the Sixth Circuit sitting en banc might have reversed even that court’s contrary rule, recognizing the likely outcome above. If so, the Supreme Court might then have laid the issue to rest without ever having had to opine on it. Whatever temporary uncertainty or confusion there might be in the short term might have been worth it for such a calming result.

Adding to the force of the denial of certiorari, even if it has no precedential value, was what it tells us about the justices’ substantive views on the High Court. We already know a lot. The recent decision striking down the anti-gay marriage provisions of the Defense of Marriage Act, though on different grounds, certainly suggested that the decision would ultimately favor gay marriage. And it should not be forgotten that it takes only four votes to grant certiorari. Apparently, the appeals at the beginning of the term could not even muster that among the so-called conservative wing of the Court.

We cannot know the reason, of course. Those on the Court opposed to gay marriage may not have wanted to hear the case for reasons having little to do with the substantive principles at issue. This could range from not thinking that the cases were the right ones on which to make a stand to believing that more time was necessary to build a coalition in the Court against gay marriage. But the conservatives on this Court have not exactly been reticent or patient. Take for example, the Court’s handling of federal subsidies under the Affordable Care Act. Four justices voted to grant certiorari in a Fourth Circuit case upholding federal subsidies even as a supposed circuit-split was evaporating. See King v. Burwell, 759 F.3d 358 (4th Cir. 2014), cert. granted, 2014 U.S. App. LEXIS 13902 (Nov. 7, 2014). A contrary D.C. Circuit decision had been vacated by that court and set for en banc review, but a group of justices, presumably conservative ones, opted to intervene anyway. Apparently, the momentum developing toward acceptance of the Affordable Care Act was just too great for those opposed to it to sit quietly by.

There is substantial momentum building toward acceptance of gay marriage as well. More and more states are legalizing it, and more and more courts are striking down restrictions on fairness principles. Part of the reason is that gay marriage proponents can offer a narrative about it that appeals to conservatives too. If homosexuality is accepted, conservative principles might be thought to dictate encouraging stability in gay relationships. If the family serves that goal well in heterosexual circumstances, why not in homosexual unions too? For this reason, it sometimes appears that the real dispute is not about gay marriage at all, but about homosexuality, with gay marriage as a kind of proxy. And because the trend in the United States, as elsewhere, certainly seems to favor full rights for homosexuals, the availability of gay marriage would seem to come almost as a matter of course, for liberals and at least some conservatives alike.

So all signs pointed to doom for those statutes outlawing gay marriage, even in the absence of a Supreme Court fight. Whether this analysis is valid or not, the reluctance of the Supreme Court to get involved in the gay marriage debate is striking. Again, it is not characteristic of any wing or justice to leave well enough alone. In this respect, the Court’s initial non-decision might be viewed as a kind of victory for Chief Justice Roberts. Over the last couple of years, Roberts has staked out a position of being the Court’s moderate voice. Clearly, he believes the rhetoric on the Court has gotten out of hand. He said so bluntly in the Defense of Marriage Act case, in which he publicly chided both wings of the Court about their use of too strong language and demonizing in making their decisions. What better way to tamp down the rhetoric than to prevent the Court from deciding the question at all? By not deciding, the Court might have decided, but without the opportunity for rancor and backbiting.

It is moderation, however, of a slightly different cast from that in Chief Justice Roberts’s other recent endeavors. Some of his “moderate” decisions—on the individual mandate of the Affordable Care Act, for example—seemed to have been motivated by the view that a middle-of-the-road outcome is more than likely the right one. A non-decision in the gay marriage cases would have been moderation, not as the source of a substantive conclusion; rather, it could have been a “moderate” approach to how a decision should be made. When the Court decides to stay out of matters, it becomes something for legislatures and lower courts to decide. The suggestion is that, with time, a consensus might emerge. The chief justice seems to be saying that the Court not only can but should stay out of this process for as long as possible, allowing the matter to be more a political one, rather than a stark vote of yea or nay under the Constitution.

New Reserve

This approach to judicial policy making is a bit of a throwback to an earlier day. Certainly, it is not the favored approach now. In fact, the Sixth Circuit judge who upheld the legislative enactments banning gay marriage expressed frustration that the Court had refused to inject itself into the process or even allowed itself to proceed when a decision at the highest level seemed natural and desirable. In recent years, it has been much more the case that the Supreme Court has been willing, not to say eager, to state its views on matters that were not always completely thrashed out previously in the lower courts. This has been true even when there was a legislative enactment to consider. The Court viewed itself as the court of last resort in the sense that it was the place to find out the definitive decision to a legal conundrum. Chief Justice Roberts’s view seems to be that the Court ought to be an absolute last resort, something that happens only after all other alternatives have been completely exhausted.

Is this new reserve a good thing? When is the appropriate time for the Supreme Court to wade, and weigh, in? There are arguments in both directions. The Supreme Court is an organ of policy, it could be said, one of the co-equal branches of government, each with a view of what the Constitution holds. But as matters have developed, the Supreme Court is now entrusted with the ultimate decision. To delay its rulings is merely to build in uncertainty. It only delays the outcome, without changing it. The Supreme Court can bring finality, and only it can do so on a national basis. No longer would there be discrepancies in how matters are decided on a legislative basis, state-to-state, or on a judicial basis, circuit-to-circuit.

But there are also good reasons for delay. One is that, left to themselves, legislatures and lower courts slowly seem to make their way to the right decisions. What takes longer may also be more lasting. The American people seem slowly to accept the larger social trends. And under modern constitutional theory, the social trends are what should primarily drive the ultimate decisions in the Court anyway. In short, the Court should enforce the will of the people, not stimulate it.

Still the downside is significant. During this slow process of development, many suffer. As gay couples wait for the process to work itself out, they are in some jurisdictions denied many advantages, both social and legal, that a clear, straightforward, and immediate decision would permit. Also, couples in one state may have benefits that those in another state will not. Discrepancies of this kind are hard to justify on the basis, simply, that the decision after a longer wait and clarification of the issues may be a marginally better and more accepted one. The earlier nonacceptance seems to be the whole point.

These considerations are nicely highlighted by two landmark cases during the second half of the 20th century. Roe v. Wade has, for many years now, been a lightning rod for arguments for or against abortion. It could be argued that the decision was premature and unnecessary. During the years before the decision, legislatures and courts had slowly, seemingly surely, moved to a liberalization of abortion rights. The progress had not been steady, to be sure. There were fits and starts in the movement. In addition, what was available to some was not available to others. Particularly in the conservative South, the availability of abortion rights was almost nil, while liberal northern states were providing their citizens with many new possibilities. What was the point of delay? If the trend was really in favor of abortion rights, why not decide early and in a manner that ensured uniformity and immediate relief?

The answer can partly be seen in the result. To be sure, there is now greater uniformity of the law. But more political rhetoric has been spent on the abortion issue in the past 40 years than on any other single matter. The political fallout has included attacks on the U.S. Supreme Court itself, which continues to be the target of protests on every anniversary of the decision. Because the decision came before its outcome had gathered widespread popular acceptance, the Court has become the issue, and to some its decision became a symbol for what’s wrong with America. Justice Ginsburg, for one, has been heard to question whether the right choice was made.

Would it have been better to let the matter mature for a while before issuing a decision? We can never know. But there is some reason to believe that the matter would have taken care of itself, over time. It is one of the virtues of the American Constitution that it provides a mechanism for such matters to be worked out elsewhere. It’s an interesting dilemma. Should the Court decide and set the issue straight, with all the controversy that might ensue? Or should it let some uncertainty and personal suffering continue in the hope of a less controversial decision thereafter?

Brown v. Board of Education

Compare Roe with a second, earlier landmark case, Brown v. Board of Education. Here too, there was a slow development in the lower courts toward a greater recognition of the defects in the doctrine of separate but equal. The Supreme Court itself kept nudging legislatures by finding some separate arrangements not equal. See, e.g., Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). Allowing this trend to continue, rather than wading into the controversy, might have brought about the right result without the Supreme Court having to decide at all. But again, there were major problems. First, there were huge geographic disparities. Second, ongoing enforcement of Plessy v. Ferguson was wreaking havoc on individual lives. And, perhaps most important, the duration of the process was extraordinary. Plessy had been on the books for over 60 years. Progress was far too slow. It is much more difficult to conclude that waiting still longer was a plausible alternative. Some problems just cannot, or do not, fix themselves.

One of the striking aspects of both decisions is how thinly reasoned they are. This would suggest that, in both instances, it might have been preferable for the Court to let the matter percolate in the lower courts and legislatures. And both became rallying cries. But timing, although it’s not everything, can be a lot. It seems likely that one reason the controversy died sooner in Brown was that the issue had been around longer, and the matter had been better worked out in the lower courts and state legislatures. Conversely, Roe, which stepped into a newer controversy at an earlier date, has remained controversial for much longer. And there are other factors. The Great Society brought to an end some of the controversies related to Brown, making the country more accepting of the effects of the Court’s decision. There has been no similar development for Roe.

In any case, it appears the justices are taking a new, more restrained approach. It remains to be seen if it makes the Court a less controversial and more effective vehicle for adapting to social change.

Robert E. Shapiro

The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP, Chicago.