Constitution Check: When the Supreme Court acts silently, what does it mean to say?

Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, explains how the Supreme Court’s recent actions without comments in major decisions may appear to be mysterious but are hardly uncommon.

SupremeCourt_insideTHE STATEMENT AT ISSUE:

“The Supreme Court opened its 2014 term with major decisions on same-sex marriage, voting rights and abortion – all handled in private, without explanation or even a breakdown of how the various Justices voted.”

– Richard Wolf, Supreme Court reporter for the newspaper USA Today, in the first paragraph of a story on October 18.


Article III of the Constitution created “one Supreme Court” to be at the top of the federal court system, and briefly spelled out some of its duties. Nowhere, however, did it tell the court that it had to explain itself whenever it took some action. There is a tradition, though, that when it finally makes up its mind, and decides who won and who lost a case, it writes an opinion, sometimes very lengthy.

But it can act in silence, if one may use such a confusing phrase. It does so, thousands of times each year, when it turns aside appeals that it does not think deserve its attention. Each such case gets one line on a list of perhaps scores of cases, and no one outside the court knows why. And it often can remain largely silent when it acts on a request that it postpone a lower court’s decision. (Lawyers and judges call such a postponement a “stay.”)

At the beginning of each term, in early October, the court turns down hundreds of cases that have built up on its docket over its summer recess. If it had to explain each refusal, the task would be simply unmanageable. But it is frustrating, to the public as a whole and to lawyers, lower court judges and journalists, when the court does not say why it denies review of a really big case, or cases.

That happened, on opening day this term, when the Justices turned aside seven appeals dealing with the issue of same-sex marriage. In each of those seven, coming from five different states, a federal appeals court had ruled unconstitutional a state’s ban on such marriages – and each appeals court had done so with a full opinion, going over all of the reasons.

From the Supreme Court, there were seven one-line orders, bypassing review without a word and no count of the Justices’ votes. (It takes the votes of only four to agree to review a new case.) This silent treatment was totally stunning to almost anyone who knows about the court’s work; it had given a series of hints that it was ready to take on that issue, and did not want same-sex marriages to be taking place in the meantime. This was the kind of historic constitutional issue, one might say, for which the Supreme Court exists; no one else can give an answer that is final (unless the cumbersome machinery of constitutional amendment is put to work and makes a change).

And the court followed up those initial denials of review with several other orders that, silently, allowed same-sex marriages to become legal in other states. Less than three weeks into the court’s new term, the number of states permitting same-sex marriages had gone from 19 to 31 – and the court had not explained its role in that.

Since then, the speculation as to why has been all over the place: the court was waiting for lower courts to reach conflicting rulings; the court was concerned that it should not preempt the chance for other appeals courts to act; the court did not want to get out in front of a nation that may not yet be ready for same-sex marriage in all 50 states by judicial decree; the court saw the issue as being worked out by other actors, so it did not want to interrupt that process.   Ask almost any observer of the court’s work, and each might speculate differently. And, no doubt, the speculation will continue until the court does, finally, have a case that it can’t resist.

But, as USA Today’s reporter Richard Wolf wrote in the quotation above, the court has been keeping to itself the reasons for quite a number of other actions this month.

With the November general election rapidly approaching, and with early voting starting in several states, the court has been asked four times to allow – or postpone (“stay”) – changes in election procedures, such as voter ID requirements, early voting days, and same-day registration and voting. It refused to interfere for North Carolina, Ohio and Texas, but delayed lower court rulings on disputed procedures in Wisconsin. Go figure.

The unexplained order in the Texas case seemed particularly baffling. A judge in Corpus Christi had issued a 147-page opinion striking down a strict new voter ID law after a nine-day trial, a federal appeals court had then blocked that ruling temporarily (thus allowing the requirement to continue in force), and the Supreme Court refused to put the Corpus Christi judge’s ruling back into effect.

Moreover, it had taken the Supreme Court until 5 o’clock in the morning to release its order. There was no explanation for that delay, and no explanation of the votes of the five or six Justices who voted to allow the requirement (it would have taken at least five to support its action), but three justices who were identified dissented and issued a six-page opinion explaining why. The majority did not answer them.

In another Texas case, the court stopped that state from enforcing across the state or in some parts of it two new requirements for abortion clinics – requirements that, when initially put into effect, had led to the closing of more than 30 clinics, leaving only eight still operating in the entire state. The action was not explained, and the votes of only three Justices in dissent were disclosed, but they did not provide an explanation why.

These are mysteries, indeed, but they are hardly uncommon. On many things that it does, the court operates very much out in the open. Its hearings are always open, all of the filings by lawyers are made public, and final decisions are released promptly in full-dress opinions, with a summary to make them easier to understand.

But, for reasons that only nine Justices know at any given time, much of consequence gets done silently. Again, the documents filed by all the lawyers even in those situations are made public, and the final orders themselves – cryptic as they often are – are public documents.

Justice, it may be said, may not be blind, but it is sometimes inscrutable.

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