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Truly Right View » From the Bench, Overstepping Legislation, Politics, To Many Laws » Will the Supreme Court Hear the Same-Sex Marriage Cases This Term?

Will the Supreme Court Hear the Same-Sex Marriage Cases This Term?

Josh Blackman has some interesting analysis about the likelihood that the Sixth Circuit marriage cases will end up at the Supreme Court this term.  I agree that the cases are on the bubble in terms of whether they would get decided this term or the next. I’ll note, however, that even his updated assumptions about the timing of filing fall far short of what we saw in the previous marriage cases, whose petitions for cert were considered in September.  

Not only were the collection of earlier marriage cases unique, in that respondents were actually supporting certiorari, the times for filing were wildly accelerated. The Seventh Circuit cases produced an amazing coincidence of the petition for cert and response filed the same day — and both only five days after the decision came down. (The Supreme Court Rules, as Josh points out, allow petitioners 90 days to file and then give respondents 30 more for their brief in opposition.) Additionally, my recollection of the practice of the clerk’s office is that it rarely waited for a reply brief before circulating a petition for consideration.  

I’m not sure what the parties — particularly the respondents — are thinking about whether it would be better strategically to be heard this term or the next, but I think we ought to consider the possibility that respondents end up supporting cert.  

Why would a state that won below ask for review? Especially given the split that has now arisen, I think court-watchers would agree that this issue has about a 99 percent chance of being decided by the Supreme Court eventually. If it’s going to get there eventually, wouldn’t you want to be the party that got to argue before the Court and eventually have your name on a landmark case? If respondents think a quicker hearing gives them a better chance of victory they might file quickly; if not, they might run out the clock and take their chances next term.

 

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Will the Supreme Court Hear the Same-Sex Marriage Cases This Term?

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