Who Is Justice Ginsburg Talking To?

Justice Ginsburg recently offered some surprising public remarks on the pending same-sex marriage petitions currently before the Supreme Court. (H/t Dale Carpenter at VC.) In particular, Justice Ginsburg suggested that the Court should not (would not?) grant the currently pending same-sex marriage petitions at the end of the month because, in her view, there is no post-Windsor circuit split. As Lyle Denniston has noted, discussing pending cases in this way is highly unusual. Why would Justice Ginsburg take this unusual step?

By way of background, here is Dale Carpenter’s transcription of Justice Ginsburg’s remarks:

So far the federal courts of appeals have answered the question the same way–holding unconstitutional the bans on same-sex marriage. There is a case now pending before the Court of Appeals for the Sixth Circuit. Now if that court should disagree with the others then there will be some urgency in the Court taking the case. But when all the courts of appeals are in agreement there is no need for us to rush to step in. So it remains to be seen what the Sixth Circuit will rule, when it will rule. Sooner or later, yes, the question will come to the Court.

One of the many reasons for Justice Ginsburg’s fame is that she has criticized the Court for too quickly constitutionalizing abortion rights in Roe v. Wade, and her new remarks seem to be in that spirit. Still, Ginsburg’s recent remarks are doubly surprising.

First, they are surprising because of their content. Federal appellate courts have now invalidated state marriage laws in large swaths of the United States, and those decisions are in conflict with pre-Windsor rulings affirming no-same-sex-marriage laws. The result is a tremendous legal disparity: same-sex couples have a constitutional right to marry in large parts of the United States, but not in most of it. This is a real problem for same-sex couples, including because states have taken different positions on whether to recognize one another’s same-sex marriages. At the same time, the federal courts have intruded into a traditional domain of state sovereignty. What’s more, the Court just a few years ago granted cert in the same-sex marriage case Hollingsworth v. Perry. Given all this, many observers thought the Court would certainly grant one or more of the pending cases. Indeed, there is a fair argument that these are among the most cert-worthy petitions ever filed.

Second, Justice Ginsburg’s remarks are surprising because of their timing and subject matter. As Lyle Denniston put it over at SCOTUSBlog: “It was highly unusual for Justice Ginsburg to raise the curtain on internal considerations that may be at work as the Court approaches its first look at the new round of same-sex marriage cases.” Normally, judges do not discuss their views regarding pending cases. And Justice Ginsburg spoke not only about the pending cert petitions in her own Court, but also about the pending Sixth Circuit case that she might soon review. Moreover, in asserting that there is currently no relevant circuit split, Justice Ginsburg appeared to advance a position that is controversial and in fact disputed by the petitioners and other parties currently before the Court.

Why would Justice Ginsburg have made these remarks? One way to pursue that issue is to ask who Justice Ginsburg was talking to. Carpenter mentions a few possibilities: “Justice Ginsburg had multiple audiences for these comments: the students and faculty assembled before her, of course, but also the Sixth Circuit and her colleagues.”

Let’s consider these possibilities separately, and add one or two more.

1. The assembled students and faculty. Maybe Justice Ginsburg was just reacting candidly to a question and spoke her mind to a closed audience. This possibility would be most tenable if Justice Ginsburg believed that her remarks would be off the record. Clearly, however, she was not off the record, for not only did Carpenter blog about his recollection of them, but an official University of Minnesota video of the remarks is now online. Assuming Ginsburg understood that her remarks would soon become public fodder, she would presumably have had a larger audience in mind. Still, it’s possible that Justice Ginsburg just didn’t think past the largely academic audience in front of her.

2. The Sixth Circuit. Could Justice Ginsburg have been putting the Sixth Circuit on notice regarding the consequences of its ruling? A few days ago, the Sixth Circuit might reasonably have assumed that its decision would just be one more opinion on gay marriage. Indeed, the Sixth Circuit might have expected its decision to issue (if at all) only after the Supreme Court had granted cert. But, in light of Justice Ginsburg’s remarks, the pending Sixth Circuit case takes on much greater significance. In essence, Justice Ginsburg suggested that the Sixth Circuit has short-term control over whether the Supreme Court will consider gay marriage this Term. Would communicating that information influence the Sixth Circuit, perhaps by discouraging it from being reviewed by the Court on such a momentous, historic issue? Could Justice Ginsburg have wanted to exert such influence? It is doubtful whether such a goal would be proper.

3. Other Supreme Court Justices. Is it possible that Justice Ginsburg wanted to supply her colleagues with a reason to deny cert? From one standpoint, that explanation is obviously insufficient: surely Justice Ginsburg could simply have circulated a memo setting forth her views. As Denniston noted, the Court has already taken administrative action on the petitions, including by distributing the most recent petition much faster than normal. Those kinds of events could easily prompt formal or informal discussion, even before the Long Conference. But perhaps Justice Ginsburg sought to persuade her colleagues indirectly by changing public expectations regarding the pending cases. That leads to the next category.

4. The public. Many people have assumed that the Court would take one of the pending gay marriage cases at or soon after the Long Conference at the end of this month. On their face, Justice Ginsburg’s comments undermine that widespread expectation. But why challenge that public assumption now? Why not just wait until, say, the denial of cert? Perhaps simply denying all the petitions without comment would be too much like a splash of cold water, particularly for the gay rights community. And if Justice Ginsburg wrote an opinion concurring in the denial of certiorari to explain the Court’s decision, that might provoke a counter-opinion by another Justice—thereby adding confusion and reducing the odds of denying the petitions at all. In addition, Justice Ginsburg might want to float the possibility of denying or holding the petitions to get a sense of how such a move would be received. If it were received well–or at least not badly–perhaps that result would increase the chances of a denial or hold.

None of these explanations seems entirely satisfactory, and perhaps several operated in tandem to various degrees. Are there other possibilities?