There’s been so much excellent stuff posted at SCOTUSBlog the last few days (well deserved winner of a Peabody), I wanted to highlight a post from Tom Goldstein that might have been lost in the rush.  It is on the question of the different ways that the Court to decline to decide the merits in the Prop 8 case.  Tom counts three: no standing to the opponents, sending it back to the Ninth Circuit to reconsider in light of the DOMA case (which at this point seems less likely if Justice Kennedy’s controlling opinion is about federalism rather than equal protection rights for same-sex couples), or dismiss the writ as improvidently granted or the equivalent of that.  The issue arises because it takes only four Justices to hear the case but five to reach a majority on the merits.  Tom writes:

If Justice Kennedy did decline to vote on the merits, then the Ninth Circuit’s judgment would be affirmed.  Either the judgment would formally be affirmed by an equally divided court, or he would nominally cast a vote to “affirm” that would produce the same result – see, for example, Justice Stevens’s 1983 opinion concurring in the judgment in Connecticut v. Johnson.

But whether a Justice can decline to decide a case on the ground that it should be dismissed, when no development has occurred since certiorari has been granted, is a difficult and debated question in the Court.  See, e.g., Richard L. Revesz & Pamela S. Karlan, Nonmajority Rules and the Supreme Court, 136 U. Pa. L. Rev. 1067 (1987-1998), and Michael E. Solimine & Rafael Gely, The Supreme Court and the DIG:  An Empirical and Institutional Analysis, 2005 Wis. L. Rev. 1421 (2005).  (Ironically, one of the most relevant authorities is an early predecessor to gay rights litigation, New York v. Uplinger.)  If Justices were perfectly free to do so, then in theory the Court’s “rule of four” – that four members of the Court can vote to grant certiorari – would be in jeopardy:  five Justices who did not grant certiorari could simply refuse to decide the case.  On the other hand, a Justice could reserve the power not to decide the merits for extraordinary cases.

One reason the issue doesn’t arise much is because Justices will vote on writs of certiorari strategically. One would not vote with three other Justices to hear a case if one believes that the 5 other Justices not voting to hear the case would decide the case adversely to your position.

So this raises the question: did the four most conservative Justices vote to hear Prop. 8 in the perhaps mistaken belief that Justice Kennedy would vote with them if he had to confront the issue?