Why would Thomas and Scalia think they had to depend on the full court’s refusal to grant stays in order to predict their ultimate ruling? Didn’t they even read the court’s own Windsor (DOMA) ruling that made it pretty damn clear to anyone but the religionist diehards?
Windsor doesn’t make the court’s SSM ruling clear at all. First, it was limited to the merits of a federal law, which gets less deference since the federal government has a limited role in regulating marriage. Second, as with prior SCOTUS gay rights cases the court declined to (openly) apply elevated scrutiny.
No.
We know Thomas and Scalia voted for the stay because they told us. We know that there was no more than one other vote on their side because only four would have been needed. It is certainly possible that there were abstentions but do you really think that there were abstentions on all of the several stay denials?
That case wasn’t about legal/constitutional technicalities, and neither is this one. The court’s Windsor ruling that equal protection applies to marriage law was as clear as it could be.
It takes four to grant certiorari, but five to grant a stay. Case in point Charles Warner. (The court refused to stay his execution, but agreed to posthumously take his case.)
Equal protection applies to every law, and always has. The “legal/constitutional technicalities” you are glossing over are the ultimate issues that were decided in Windsor and those that SCOTUS will have to decide later this year.
You cite says that it takes five to stay an execution. Everything that I have been reading on the legal sites that have been following this, such as Equality on Trial, have been very clear that they needed for votes in these cases.
It is customary for a fifth justice to vote for a stay in death penalty cases even when there are only four voting to take cert.
The rules on this seem a little unclear, so I’ll be happy to admit if I am wrong. The Supreme Court rules of practice imply that a Justice is able to issue a stay on their own without referring it to the full Court, and if I recall correctly Sotomayor did just that on some of the SSM cases out of the Tenth Circuit. Since stay requests from the Eleventh Circuit come directly to Thomas, I was a little curious as to why he didn’t just grant the stay himself if he felt that strongly about it, and when I ran across that business regarding the executions this seemed to explain the matter. (IAAL, but I don’t do much federal litigation and have never been in a Circuit Court of Appeals or higher.)
Odd, then, all that EP discussion in Windsor that at least seemed to form the basis of the ruling, which dismissed all the neofederalist ideological twaddle that you claim to be the ultimate issues. Odder still that EP even needed to be discussed at all, given that it applies to every law, as you so gloss over.
You have the rules right. A stay, like any other judgment or order, takes five votes.
The rest are customs. Certiorari takes four votes. On big issues, stays are usually referred to the full court immediately. I have heard that Thomas is even more deferential on stays than the other justices in referring to the full court. And when the case would be mooted in the absence of a stay (many death cases), then there is usually a courtesy fifth vote.
Thomas could have issued the stay on his own but then the litigants are allowed to “justice shop” and find another Justice to refer it to the full court. Thomas probably didn’t want to go through all of that when he knew how it would go.
I just went to get clarification and I was incorrect. I apologize.
The EP discussion focused on Equal Protection of married couples…that the federal government was treating gay couples who were legally married differently than straight couples who were legally married, and that was a disparagement. Or, as the opinion put it:
I think there’s a good equal protection argument to make here. And I think the same sex marriage side should win on the merits. But I don’t think that Windsor inevitably leads to that.
A contrary ruling would be in sharp conflict with Windsor, would it not? Yes, it’s not inevitable that the court would rule that way, but it’s very hard to see how any of the very same people would construct a path of reasoning that direction.
They are? I thought it had to be the justice in charge of the circuit.
Huh?
The question is not whether equal protection applies. It is how equal protection applies.
It would not. To strike down laws prohibiting same-sex marriage, SCOTUS will more or less have to find that such restrictions are subject to elevated scrutiny, something it declined to do in Windsor. They could do this two ways: either on the basis that marriage is a fundamental right (as in Loving v. Virginia), or on the basis that homosexuals are the type of “discrete, insular minority” that justifies suspect classification (probably analogous to gender classifications, as in Craig v. Boren). Neither is a foregone conclusion, though the latter is more likely.
The court could also follow its pattern of pretending to review orientation-based classifications under rational basis, but actually applying something else. If they do that their decision could go either way, but they’d probably uphold the laws. The problem with doing this is that it would lead to potentially inconsistent results. Whether a specific SSM ban not currently before the court is valid could depend on the method of passage (as in Romer v. Evans.)
I hope that’s not too much “neofederalist ideological twaddle.”
And there is no consistent, respectable way to avoid a blanket ruling in favor, as you point out.
That isn’t what you said; instead you focused on process while excluding substance and reasoning. The ideological stuff comes from those still claiming states’ rights have standing against the feds, and that popular votes should and even do override constitutional rights. I hope you agree that’s twaddle.
There is certainly a consistent way to avoid a blanket ruling in favor. In fact, it will probably be an inconsistent ruling if they rule in favor of the challengers, because it will be a departure from prior case law. I will welcome it, but nothing they have said before requires it.
I have no idea what you’re talking about in the second part of your post. Perhaps you’re confusing me with someone else posting in this thread.