There have been a few news stories this week about the Supreme Court’s non-action on the DOMA and Same-Sex Marriage cases late last week and today. Gawker argues, surely as a joke, that the Court is being deliberately obtuse:
Maybe they’ll make an announcement Monday, maybe they’ll wait until they meet again in January. Maybe they’ll put their fingers in their ears and chant “I can’t hear you, I can’t hear you” until the seas turn red and the sun wheezes itself into blackness. They had been “widely expected to decide whether to take up a case that could ultimately determine whether there is a fundamental right to same-sex marriage,” but you can’t pin these nine free spirits down.
Ariane de Vogue at ABC News notes that “the justices surprised court watchers” by deferring to the next conference. At Above the Law, Elie Mystal quips: “SCOTUS is acting like an old college roommate who just came out is inviting them to a gay bar, and they’re trying to politely decline without looking like raging homophobes.”
I think the real explanation for the delay is much less exciting than the commentators want to believe. More likely than not, the Court was just taking more time to properly decide which cases will make for the best vehicles. There are ten petitions raising similar, but not identical, issues and each one presents a slightly different vehicle for review. It is not at all unusual for the Court to wait one or more conferences before granting a petition, especially in a complicated situation where simultaneous petitions are raising the same issues.
There is also a narrow likelihood that one or more members are preparing a dissent from denial if the Court intends to deny the Prop 8 petitions. The least likely scenario—and one that I think is fairly unlikely—is that members of the Court are preparing a summary reversal in one or more cases. Again though, I think the most likely reason for the delay is that the Court just wants more time to pick the right vehicle(s).