Twice this past week, readers wondered why I had forgotten a key element of one of the most basic aspects of journalism: the old who-what-where-when-and-how.
It was clear what the Supreme Court had done, they said, but where’s the why? There’s a pretty good defense for that, though it is frustrating for all: The justices never gave their reasons.
In an incredibly consequential first week of the term, the court allowed same-sex marriages to proliferate around the nation, temporarily put on hold and then gave the green light to rulings ending the bans in Idaho and Nevada, and refereed state laws governing voting in next month’s midterm elections.
All without explanation.
“We’re judged ultimately by what we write,” Justice Anthony M. Kennedy once told a congressional committee when asked why the justices’ oral arguments were not televised or why little was known about the court’s private conferences at which decisions are made.
But there’s not much to analyze about Kennedy’s order issued Friday night that denied the state of Idaho’s plea to put a hold on gay marriages while it continued appeals. “The application for stay presented to Justice Kennedy and by him referred to the Court is denied,” it said.
Likewise, the court in recent days has allowed restrictions on voter eligibility and early voting hours to proceed in North Carolina and Ohio, respectively. It also put a hold on new voter ID requirements in Wisconsin. All of those decisions were contrary to the opinions of appeals court judges who had reviewed the cases — and all came without explanation by the court majority. That majority, by the way, was different in each case.
And of course most significant was the court’s decision, announced Oct. 6, to pass up review of three appeals courts that collectively had struck down as unconstitutional prohibitions on same-sex marriage in five states — Virginia, Utah, Oklahoma, Indiana and Wisconsin.
There were no recorded dissents, and the best clue as to why the court felt no need to get involved came last month from Justice Ruth Bader Ginsburg in a Q&A at the University of Minnesota Law School.
“So far the federal courts of appeals have answered the question the same way — holding unconstitutional the bans on same-sex marriage,” Ginsburg said. If some other appeals court disagrees, “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.”
Still, the court often does step in when there is no disagreement among lower courts. And it could not have escaped the justices’ attention that not taking the cases greatly expanded the number of states in which gays may marry beyond the 19 states and District of Columbia where it was legal the morning of Oct. 6.
The justices often say — usually, when being questioned about why they do not allow their proceedings to be televised — that the court is the most transparent branch. Almost everything filed with the justices is open to the public. And justices say they are the only officials who must explain their votes and put their names to the reasoning behind their decisions.
But that is in cases that have been fully briefed and argued.
The practices are quite different in other areas. For instance, the request that the court review the three appeals court decisions was among thousands of requests the court considers. It takes four justices to take a case — grant certiorari, in the court’s parlance — and it is rare for them to give a reason for denial.
“The court denies review in around 8,000 cases a year,” said Kannon Shanmugam, a Washington lawyer who often represents clients before the Supreme Court. “If the court had to agree on an explanation in every single one of those cases, it would paralyze the institution.”
And Justice Sonia Sotomayor said earlier this year “there’s a lot of pressure among colleagues not to issue those statements . . . we are a court that has to find compromise often.” That said, she and others sometimes issue dissents from so-called cert denials to draw attention to a matter or signal a willingness to hear a future case that better presents the issue. Moreover, cert denials are not meant to pass judgments about the merits of the legal issue before the court.
The court’s decisions on voting law changes were not on the merits of the laws, either. They came as emergency requests to stay the actions of the lower courts. Irving Gornstein, executive director of the Supreme Court Institute at Georgetown Law Center, notes that the justices are under pressure to act quickly.
It might be that a majority of the court agrees on the outcome, but not on the reasoning, he said.
Still, Gornstein agrees that sometimes the court is clear about its reasons, sometimes not.
The void is filled with speculation, including by me.
Perhaps the court’s conservatives are leery of how a majority of the court would answer the question of whether a state may ban same-sex marriage. Perhaps it is clear what a majority of the court already believes, and allowing marriage to proceed piecemeal conditions the country to be more accepting of the change.
Richard Hasen, a law professor at the University of California at Irvine, notes that all three voting cases probably reflect a wariness among the majority about changing rules too close to an election.
But critics of the court say it should be more straightforward.
Eric Segall, who along with fellow law professor Lisa McElroy has written a forthcoming book called “Supreme Secrecy,” wrote last week that the justices could take a small step by releasing information on how justices vote when considering whether to accept or deny a case.
“What if it turned out that Justice X consistently voted against hearing civil rights cases or environmental law cases, or Justice Y consistently voted in favor of hearing campaign finance reform, affirmative action or abortion cases?” Segall wrote in an op-ed in the Los Angeles Times. “Which cases a justice thinks are important enough for the court to hear define, in significant part, the work and career of that justice.”
That is unlikely to happen. And the why of the Supreme Court’s action will remain a mystery until the court itself decides to reveal the answer.