On March 28, I posted on the possibility that the Court in the Prop 8 case might dismiss the case as improvidently granted (or “DIG”) the case, thereby allowing the lower court ruling barring enforcement of Prop. 8 to stand, but not setting any precedent on the gay marriage issue. This would allow likely swing Justice Kennedy to avoid the issue, at least for a while. But I noted a catch:
The issue arises because it takes only four Justices to hear the case but five to reach a majority on the merits. Tom [Goldstein] 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.
So the thinking is we would not have four Justices voting against a DIG. Yet that’s precisely what happened this week in Boyer. v. Louisiana, a case involving a speedy trial. As Rory Little explains, “four of the [Justices] dissented from the [DIG] order at length (Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan), while another three (Justice Alito concurring in the order, joined by Justices Scalia and Thomas) expressed their supportive rationale…”
So it could certainly happen again in the Prop. 8 case, though I would expect that the dissenters there would be Jusices Scalia, Alito, Thomas [corrected], and possibly the Chief.
