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.
  1. 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.
  1. 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.
  1. 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?




Filed under Cert Stage

10 responses to “Who Is Justice Ginsburg Talking To?

  1. Justice Ginsburg is presumably happy with the decisions made by the courts of appeal thus far. Now, consider that there are 4 or maybe 5 justices who are do not feel that same sex marriage should be mandated by the courts. Presumably these justices will grant cert regardless of whether there’s a circuit split (because they feel that the cases were wrongly decided below, and that Supreme Court precedent was not applied properly).

    In that context, what do these comments mean?

  2. TyrionL

    What about a modified version of possibility 4? She knows the court will in fact grant the cases, but she wants to capture the news cycle when that happens, so she needs to manage expectations for now.

  3. anon

    “Justice Ginsburg’s remarks are surprising..” Actually, her comments are identical to at least two other justices (Thomas and Roberts) regarding review of lower court-especially US Cout of Appeals-decisions.

  4. JohnM

    While denying a review of the cases before them might anger some, many people would be pleased that the circuit courts’ rulings would immediately apply to the states in question.

    And why would they really need to do a review if there has been no disagreement in the rulings thus far from the appellate level?

  5. Mark

    Honestly, Ginsburg’s remarks were entirely improper and if other justices have made similar remarks they too were improper. The court is banned from offering advisory opinions, and an advisory opinion need not be formal. Typically, this refers to the substance of an opinion but there is nothing in the text that limits it to that–it can apply to procedure as well. Looked at in that light, Ginsburg offered an advisory opinion regarding a procedural matter before the Court. Whether that was her intention is not remotely relevant because that was as a de facto matter what she did..

    • Sorry, but your analysis is flawed.. Article III sets out the limits of the federal judiciary’s powers. It in no way restricts an individual justice from making remarks on her own time. It’s debateable whether this was improper, but it’s certainly not unconstitutional.

  6. RBBrittain

    Frankly, I doubt Justice Ginsburg has read any of the filings in the seven current petitions yet; the cert pool is reading them for her. 😉 If she knew ALL parties in those petitions (including all respondents *and* 32 state AGs as amici) favor granting one or more of them, she might think differently. And with at least some of the conservative justices likely to grant because they disagree, plus the risk Lyle pointed out in his article that denying cert now may lead to invalidated SSMs in some states (contrary to the Court’s intent in staying the Utah & Virginia rulings) if they uphold SSM bans in a later case, I think at least one of the current petitions will get four votes to grant (IMO either Utah or the 7th Circuit cases).

  7. Rick

    Doesn’t cert. cause more problems for her buddy, Justice Scalia? It has been his words most sighted in most of those cases has it not? Maybe she’s running interference for a colleague who feels he may be severely embarrassed?.

  8. Robert

    To four unsatisfactory explanations, I add a fifth: she is preparing the public for what is about to happen. At first blush, denying cert seems the least likely outcome, since the stays will be lifted and same-sex marriage will become legal in many states without consideration by the Court. Suppose, though, that Justice Kennedy has concluded that the bans are probably unconstitutional, but he wants an opportunity to take it back if things go badly. So the court denies cert in one or more of the cases with the chance to step in later. The conservatives don’t vote to take the cases because anything is better than losing. The liberals defer to Kennedy’s wishes.

    Do I actually think that’s what’s happening? No, but the other explanations aren’t persuasive either. Maybe she just spoke without thinking.

  9. Pingback: Supreme Court Signals | Re’s Judicata

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