Federal Courts and Nominations

Supreme Court’s 2014 term off to a stealthy start

By Richard Wolf


WASHINGTON — The Supreme Court opened its 2014 term this month with major actions on same-sex marriage, voting rights and abortion — all handled in private, without explanation or even a breakdown of how the various justices voted.


No oral arguments were held. The two sides in each dispute submitted lengthy briefs summing up their arguments, but when it came time to rule, the justices did not return the favor. It took the court just 17 words Friday to clear the way for gays and lesbians in Alaska to get married.


Nor did the justices explain their actions or publicize their votes on the 11 new cases they decided to hear this winter, or the more than 1,900 they turned down. They simply issued lists of grants and denials, leaving it to the lawyers and journalists who follow the court to speculate as to the whys and wherefores.


By all accounts, it was one of the court’s fastest starts in terms of major decisions with national implications — all, at least for now, shrouded in secrecy.


“All of America wants to know what they’re thinking, and they refuse to let us know,” says Eric Segall, a law professor at Georgia State University and co-author of the forthcoming book Supreme Secrecy.


“They want to stay mysterious,” Segall says. “They want to stay aloof.”


The new term’s mystery began to emerge on its opening day. While the justices debated a case that hinged on a broken brake light, their decision not to consider any of the pending same-sex marriage cases was hidden inside an 81-page list of cases similarly denied their day in court.


In the two weeks since, the court has interceded in a series of cases on gay marriage, voting rights and abortion to consider emergency appeals. It upheld, reversed or altered lower court rulings without explanation; only the dissenters explained their votes.


All of that is normal operating procedure for the court, and the procees has its defenders. If the justices announced their votes on every case they refused to hear, it could affect how future cases on the same topics are litigated and decided. And there simply isn’t time to write opinions for every emergency petition, which usually require rapid-fire rulings.


“Whenever the Supreme Court writes something, those things can be quoted back at it,” says William Jay, an appellate lawyer at Goodwin Procter who argues frequently at the court. “There is no such thing as a non-precedential Supreme Court opinion.”




There have been instances in the past, however, when the court saw fit to explain even emergency opinions. In 2009, it issued a three-paragraph explanation of its decision not to block the sale of Chrysler’s assets during bankruptcy proceedings. And in a 2006 challenge to Arizona’s voter ID law, the justices issued a complete ruling that has been cited frequently ever since.


Those are the exceptions. More often, the court’s orders read like the one clearing the way for same-sex marriages in Alaska: “The application for stay presented to Justice Kennedy and by him referred to the court is denied.”


Chief Justice John Roberts, now entering his 10th year on the court and seeking to solidify his central role in its administration and jurisprudence, appeared to be a key player in the past two weeks’ somewhat furtive actions.


On same-sex marriage, he likely was among the justices who refused to grant any cases from Utah, Oklahoma, Virginia, Indiana or Wisconsin. That cleared the way for gay and lesbian marriages in those states and others — the single biggest step yet taken toward a 50-state solution.


Roberts also appeared to be a decisive vote in the court’s blocking of an anti-abortion law in Texas and a voter ID law in Wisconsin. He sided with the court’s conservatives in approving lesser voting restrictions in Ohio.


Now that those decisions are in the history books, court-watchers are left to speculate about Roberts’ actual role. Only the justices who dissented in those cases put their names to their actions. The two whose names never appeared — Roberts and Kennedy — assembled the majorities.


“Even lower courts seeking guidance for their own rulings have been left to guess why the justices issued certain rulings. All of this is harmful to democracy,” says Nan Aron, president of the liberal Alliance for Justice. “In exchange for their lifetime appointments, the least that the justices owe the American people is clear explanations for their decisions and their conduct.”


That’s what the American people get in most instances, Roberts says. “We are the most transparent branch of government,” he said in 2011. “Everything we do that has an impact is done in public … our decisions are out there.”


Those decisions come only in cases that are fully briefed and argued — about 70 a year, just 1% of the petitions the court receives.




To be sure, the court has issued lengthy rulings in some blockbusters recently — upholding President Obama’s health care law in 2012, striking down key sections of the Voting Rights Act and Defense of Marriage Act last year, and granting religious liberties to for-profit businesses and local governments this year.


But for the 7,500 or so cases that don’t make it to the court’s docket, the justices simply refuse to hear them without explanation, as they did in the recent gay marriage cases.


The court has “an enormous practical effect in society on people’s lives by denying review,” says Erwin Chemerinsky, founding dean of the University of California-Irvine School of Law and author of the recent book The Case Against the Supreme Court.


Chemerinsky notes that without offering explanations or vote counts, the justices in the last few weeks have affected the lives of thousands of voters in Ohio, Wisconsin and North Carolina, thousands of women seeking abortions in Texas, and thousands of gay and lesbian couples in at least 11 states, from Virginia to Alaska.


“I cannot think of any time when the Supreme Court was having such a practical effect through the preliminary orders they were issuing,” he says. “The problem, when it’s an order without an opinion, is it just seems arbitrary.”


If the justices think they are avoiding controversy by issuing brief, unexplained orders, however, this fall’s flurry of rulings may come back to haunt them. That’s because the orders are temporary; lower courts still must hear the cases on the merits, and their rulings can be appealed back to the Supreme Court.


“The … decisions seem to be setting the court up to issue earth-shaking rulings on voting rights, abortion and marriage equality in the heat of the next presidential election season,” says Doug Kendall, president of the Constitutional Accountability Center. “In the name of prudence, the court is arranging to put itself at the center of the 2016 political maelstrom.”

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