The Supreme punt on gay marriage

From left: Assemblyman Tom Giblin (D-34), attorney Donald Scarinci, and Democratic operative Tom Bertoli, at the Irish Pub Tuesday.

From left: Assemblyman Tom Giblin (D-34), attorney Donald Scarinci, and Democratic operative Tom Bertoli, at the Irish Pub Tuesday.

The U.S. Supreme Court shocked many legal experts when it denied appeals in five cases involving the legality of same-sex marriage. While the practical result of the decision was favorable for proponents of gay marriage, it still leaves a lot of questions unanswered.

Not surprisingly, many are questioning how the justices were allowed to punt on what is quickly becoming the most significant Constitutional question of our time. While the debate over whether the Court should have granted certiorari is a matter of opinion, the justices were well within their authority to do so.

For the first 100 years of its existence, the Supreme Court decided all of the cases that properly came before it. However, due to a growing caseload, most mandatory-appeal statutes have been repealed over time in favor of discretionary review. As a result, petitioning the justices to grant a writ of certiorari is often the only avenue to the country’s highest court.

Under Supreme Court Rule 10, “Review on writ of certiorari is not a matter of right, but a judicial discretion. A petition for writ of certiorari will be granted only for compelling reasons.” Accordingly, the United States Supreme Court has discretionary jurisdiction over most of the appeals that come before it, meaning that it can unilaterally decide whether or not it will accept any particular matter for review.

The Supreme Court Rules set forth factors that the justices may consider when reviewing an appeal, such as a conflict among the United States court of appeals on an “important matter,” and conflict among state courts of last regarding an “important federal question.” However, these reasons for review are neither controlling nor fully measuring the Court’s discretion.

While the Supreme Court likely gave the same-sex marriage petitions a good long look, most cases never make it before the justices for discussion and voting. Often, the justices may only take five minutes to review a law clerk’s short memorandum on the issues before deciding a case is not worthy of consideration. After all, more than seven thousand petitions must be whittled down to less than 150 cases to be decided on the merits.

In reality, each justice makes his or her own assessment of the case, which can be both objective and subjective. As described by Justice John Harlan, “frequently the question whether a case is ‘certworthy’ is more a matter of ‘feel’ than of precisely ascertainable rules.”

Since the Supreme Court is not required to provide an explanation for denying certiorari, we may never know why they declined to hear the same-sex marriage petitions. However, given that lower courts are still rendering decisions, the Court’s denials do not mean that it is not open to addressing same-sex marriage later down the road, should a true circuit split arise. So far, all of the federal courts of appeal have ruled that bans on same-sex marriage are unconstitutional, making it easy for the justices to sit on the sidelines for now.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

The Supreme punt on gay marriage