The Supreme Court has captured the attention of much of the nation this week. (photo by David King/flickr)
By Robert Bradley
For the last couple of days, a form of March Madness hit the nation’s capital.
People stood for hours in long lines to attend an event, and some of them reportedly paid up to $6,000 for the privilege to stand in line. And outside the forum for the event loud rallies attended by many were held. The event, of course, was oral argument before the Supreme Court on cases dealing with Proposition 8, which is a California constitutional amendment banning same-sex marriage, and DOMA, which is the Defense of Marriage Act that established the federal government would not legally recognize same-sex marriage.
An option for the Court in ruling on these cases is to DIG one or both of them. DIG is an acronym for “dismissal (for a writ of certiorari) improvidently granted”. Essentially, this means the Court is saying it made a mistake in giving a hearing to a particular case. Research indicates that DIGs are pretty rare happening on average two or three times in a Court term. The Court in recent terms only grants hearings with full opinions to around 80 cases a term out of around 9,000 that are presented to it. So when the Court DIGs two or three cases out of those 80 accepted that is worthy of attention. This is particularly true for those who thought they had been successful in overcoming the very difficult challenge of getting a hearing before the Court.
Prior research has indicated that DIGs are done for one or both of the following reasons. One is that the Court wants to avoid ruling on a constitutional question. The Constitution is the supreme law of the land, and justices typically will evade making a ruling that would alter the document. The second reason is that the central issue in a case is so new that legal thinking on the issue has not fully developed yet.
Both reasons seem to apply to both of the same-sex marriage cases, but much more so to the Prop 8 case. In that case, the primary argument made by opponents to Prop 8 is that marriage is a fundamental constitutional right that cannot be abridged by state actions. Justices, whether considered to be liberal or conservative, are usually very reluctant to create a new constitutional right. Also, numerous publicized public opinion polls have documented that public opinion has shifted dramatically in a short period of time on same-sex marriage. Perhaps more importantly an increasing number of state and federal government officials are shifting their positions on same-sex marriage. So thinking on same-sex marriage is currently in a process of rapid evolution.
Thus there is the distinct possibility that the Supreme Court could DIG the Prop 8 case. This would result in the federal court of appeals decision on Prop 8 being allowed to stand. The key elements of that decision are: no recognition of a constitutional right to marry; Prop 8 is unconstitutional on equal protection grounds; and, the 18,000 same-sex couples married from the time of the state supreme court decision that permitted them to marry to the passage of Prop 8 that banned such marriages would be considered to be legally married. Also, the DIG would limit the Court’s decision only to California.
Some political observers claim that a Court DIG on the Prop 8 case would work to the benefit of the Democratic Party and to the detriment of the Republican Party in the upcoming 2014 elections. Democrats could still work hard on creating a constitutional right to marry, and changing state laws on marriage. Republicans would still have to wrestle with their official stances on same-sex marriage.
So stay tuned in June as to whether the Court uses this little-known tactic to deal with a very volatile issue.
Bob Bradley is solely responsible for the opinions expressed above. These opinions do not necessarily reflect those of WJBC, Radio Bloomington or Cumulus Media staff or management.
Bradley was a full-time professor in the Department of Politics and Government at Illinois State University where he has been since 1982. He has received several recognitions including: Carnegie Scholar for Civic Engagement, Constitution Trail Friend of the Year, and Faculty Star distinction by ISU Athletics. He dearly loves his wife, Reenie, of more than 25 years, and his daughter, Erin. He is an avid reader, devout sports enthusiast, gardener, golfer, and bird watcher.