Since the Supreme Court denied cert to a number of petitions in the marriage equality cases (or same-sex marriage, if one prefers), it has been almost as interesting to watch the reactions from pundits, court Kremlinologists and law professors as the event itself that sparked the responses. Liberals, like Slate‘s Dahlia Lithwick, are disappointed that the Court failed to write the gay marriage opinion and kicked the can down the road. Law professor Robin Wilson feels much the same. Meanwhile, National Review‘s Matthew Franck provocatively compared federal courts finding a constitutional right to same-sex marriage akin to Dred Scott, while Ed Whelan is more interested in reading the tea leaves behind the Court’s cert denial, but notes what he feels to be the resignation of the conservative justices on this issue. Founding member of the Federalist Society and accomplished law professor Steven Calabresi argues that while he supports marriage equality in principle there is a no federal jurisdiction for courts to hear these cases.
The liberal critique is predictable. At bottom, they are insinuating, if not outright stating, that the Court has a job to do: decide the cases that come before them. In reality, liberals simply want the Brown or Roe of the gay-rights movement. It will be interesting to see if liberals are as eager for the Court to grant certiorari in the Texas abortion case, which will require review of the stringent restrictions on the availability of abortions in Texas. Will liberals be calling for the Court to do its putative job or will be they wondering if they can count on Justice Kennedy to write Casey redux? It is reasonable to assume there will be more liberal angst about the Court’s work under those circumstances.
The modern Supreme Court, as Tom Keck has shown, has been the most activist in history (Keck 2004). (Keith Whittington has argued persuasively that the Roberts Court has been less activist than than Rehnquist and Burger Courts (Whittington 2014)). It even had the institutional confidence — some might say arrogance — to decide the 2000 election for the country on shaky legal grounds. Not so long ago, liberal legal scholars found themselves calling for the Court to restrain itself (Tushnet 2000, Kramer 2005). One might think that the Court restraining itself and letting the (remarkable) progress of the LGBT litigation campaign play itself out in the lower federal and state courts would be a welcome change. Instead, the liberal response to the Court’s restraint was premised on the likelihood of feel-good “win” in the culture wars.
On the other side of the coin, it is difficult to take seriously Franck’s comparison of the as of-yet hypothetical gay marriage decision as akin to Dred Scott — this feels like what has been called “click-bait” and Franck’s post appears to be literally baiting liberals. Professor Calabresi’s federal jurisdiction argument, conversely, is a serious legal argument. But, once one digs down, it reads more like an amicus brief to the Court. Perhaps I’m wrong, and perhaps Calabresi has recognized a jurisdictional issue that no other federal court judge or litigant has, but this seems unlikely. In any event, as a matter of empirical reality, it seems to be tilting at windmills. If the jurisdiction issue had legs in regard to the latest round of circuit court cases, it would have been jumped upon by conservative federal appellate judges — few thoughts are sweeter to an appeals court judge that does not want to pass on an issue on the merits than “jurisdiction” and “waiver.”
Conservative resignation over the issue is probably the appropriate reaction to what is happening on the ground, but liberals should be careful what they wish for. For a Court that has not shown itself shy to inject itself into debates — at least with Whittington’s caveat — this act of restraint should be noted.