You’ll see more rulings like Judge Sedgwick’s, “A stay of this decision to allow defendants to appeal is not warranted. It is clear that an appeal to the 9th Circuit would not succeed. It is also clear … that the High Court will turn a deaf ear on any request for relief from the 9th Circuit’s decision.”
Yeah, the 6th Circuit has been posting new decisions pretty much every day; no telling when this one will come:
http://www.ca6.uscourts.gov/cgi-bin/opinions.pl
If I’m understanding right, there are two ways it could be appealed… one is they could ask for an en banc hearing (the whole 6th Circuit, not just the three judge panel), and the other is to the Supreme Court. I’m not really clear if they have to decide on whether it’s being heard en banc before appealing to the Supreme Court, or if they could appeal straight to the Supreme Court but then the Supreme Court could request the 6th Circuit hear the case en banc before they’re willing to hear it…?
as hajario mentioned, Arizona just got equality. Alaska is stayed until noon PDT today. The Montana judge will rule Monday. It’s an exciting time.
I’m not a constitutional law expert, but yes, the losing side could ask for an en banc rehearing, or they could appeal to the USSC directly. If the appeal to the en banc Circuit, they could still be an appeal to the USSC afterwards.
And the if the 6th finds for SSM, they might or might not stay the ruling which has its own interesting sets of plot twists.
But how likely are federal judges to make rulings they *know *are going to get reversed? Even those wanting to rule in favor of their prejudices can deal with it by ruling, as petulantly as they like, that SC has decided the matter and they’re deciding accordingly, no discussion needed or appropriate.
Well, in theory the likelihood is zero, since judge are supposed to rule on the law and the law alone, leaving their personal prejudices out of it.
In reality I don’t think you get to the circuit level unless you have a history of scrupulous adherence to precedent - the kind of judge that lets his personal views influence his jurisprudence doesn’t get appoint to a higher court. Of course, as stated above, I am not a constitutional scholar, nor do I know a lot about the inner workings of the court system.
Wouldn’t that be pretty?
Wyoming.
Factual Question
Does anyone know, what’s the latest we might have to wait before the 6th Circuit rules on the SSM cases before them? Is there a “last day of the session” by which they’re expected to rule on all cases currently before them?
Re: 6th Circuit:
Based on answers I got to essentially this same question back when the 10th Circuit was deliberating, it seems the Circuit Courts don’t have sessions the way the SCOTUS does, and they also don’t have a fixed deadline for their deliberations.
Now an opinion: we’re coming up on 90 days since they heard oral arguments, so I think they must be starting to feel the heat. If somebody wants to make a pool, I’ll put my money on November 10. It’s the first Monday after the midterm elections.
I did some searching around too and couldn’t find good information. One school of thought is, as you said, right after the midterm election. The other is that it will be after it is too late for SCOTUS to take it up in this session if it upholds the bans.
By the way, this decision is a combination of appeals from all four States in the circuit, each of which struck down the bans.
I’m not being snarky, but what motivation would these three judges in the Sixth Circuit have for either postponing the decision until after the mid-terms or delaying so SCOTUS can’t review it this term?
If the decision is 2-1 in favor of the laws, then that majority WANTS and BEGS the Supreme Court to decide this issue. It the decision is 2-1 against, then it gets filed along with the so far unanimous decision of the other circuits. Nothing to see here.
I just don’t see the motivation for either school of thought.
I read it on the Equality on Trial blog.
Exactly. The federal circuit courts don’t have discretionary dockets like SCOTUS and they hear cases year-round (or nearly so). And if the authoring circuit judge is holding things up (and I have no idea if this is true in the CTA6 same-sex marriage case), then there’s basically nothing that the other circuit judges can do but wait for the draft opinion.
Is there really no limit at all? Can one judge hold things up indefinitely? Is this only true for the majority or can one dissenting judge hold up the process?
A dissenting judge could not hold up the process in the same way as the authoring judge. The authoring judge, once he/she has a second vote, could issue the opinion without the dissent. Accordingly, the dissent would be issued later than the majority opinion. This has happened before.
An authoring judge, however, could gum up the works for a long time. There have been instances where the panel has reassigned the opinion to another judge on the three-judge panel. This is an unusual step and it rarely occurs. Circuit judges tend to be concerned with collegiality.
And in any event, it’s not unusual for a circuit opinion to take a long time to be released. I’ve seen cases where oral argument occurred over a year before the opinion was issued. The Sixth Circuit used to be one of the slowest circuits in terms of average disposition time, but it’s gotten better over the past couple of years. Some judges are slower than other judges in circulating drafts opinions, too.
I don’t have my cite-fu handy, but didn’t the last D.C. gun case (the one that led to the city enacting a may-issue concealed carry law) take more than five years from oral argument to opinion?
The party wanting a decision could file a Writ of Mandamus with a higher court, but at least in that case, the higher court said it wasn’t an issue yet. Judges, in many instances, start to suffer from “Robes Disease” and become arrogant and don’t care that the parties want a resolution.
One of my cases was argued more than a year and a half before the opinion was issued. Unless the delay is years or more, any writ of mandamus would almost certainly be denied. Federal district judges are somewhat disciplined by the six-month motion list, but there is no similar mechanism for circuit judges.
Alice, you are my favorite new poster of the month. It’s not a very high bar, so take that for what you will.