Important Josh Blackman post. “Thomas Weighs In On Denial Of Stays in SSM Cases: ‘Our recent practice, however, gives me little reason to be optimistic.'”Justic

So this suggests that Scalia and Thomas have been voting to hear the same sex marriage cases, but they are not being joined by (most likely) Alito and Roberts.

Here’s what I wrote last year (in what has proven to be partially wrong, or premature), about why I expected a cert. grant in the same sex marriage cases:

It takes only four votes to grant a cert. petition, and it is hard for me to imagine Justices Scalia, Thomas and Alito not wanting to take one of the cases coming up, such as the Utah case, in which a federal court held that the state’s ban on same-sex marriage violates both equal protection and due process guarantees, or the Ohio case, where a federal judge indicated he’s quite likely to reach that same result as to Ohio’s law.  If lower courts are going to start siding with same-sex marriage proponents, and start legalizing same-sex marriage as a result of court order in places such as conservative Utah, then it seems hard to imagine Scalia, Thomas, and Alito not urging the Court to take the case.

So where’s the fourth vote?  I think Adam is right that Kennedy would rather let the issue percolate for a while (witness his convoluted opinion in Windsor not addressing the issue more straightforwardly). But Chief Justice Roberts is a different story.  He appears in Windsor to oppose judicial imposition of same sex marriage.  That’s where his sympathies are. The question is whether he pulls the trigger or not and votes to take one of these cases. Strategically, he could decide it is better not to vote to take the cases if he thinks, as many thoughtful observers do, that if Kennedy had to decide the issue, he would side with the right to same-sex marriage.

But that same strategic calculation which might lead the Chief not to vote to grant cert. could lead one of the four Court liberals to vote to take the case. That is, they too may want to force Kennedy’s hand, if they are confident in his vote.  If it only takes one of the four to join in a vote for cert., I think it is pretty likely to happen. The way it might not happen happen is if Alito, Scalia and Thomas all decide to vote strategically not to hear these cases.  I’m guessing they won’t be able to resist.

Of course, with the new Sixth Circuit opinion creating a Circuit split, I think it inevitable the Court will take up the issue very soon.