The first Monday in October is the traditional start day for the new Supreme Court term, and so it was for 2020. Sitting for the first time since 1993 without Ruth Bader Ginsburg and via telephone, the eight-member Court heard two cases and issued numerous orders. The Senate Committee on the Judiciary announced the same day it had scheduled hearings Oct. 12-15 on the nomination of Amy Coney Barrett to the Supreme Court.
Thomas Dissents on Gay Marriage – Again
Before the Court started its virtual hearing, it issued several orders in other cases, including one involving Kim Davis, the infamous county clerk in Kentucky who refused to issue marriage licenses to same-sex couples based on her stated religious objection. This defied a Supreme Court ruling holding, they were entitled to marry based on a newly found constitutional right. She was sued by two couples denied marriage licenses who claim she had violated their constitutional right to marry.
Davis argued she had qualified immunity from the suits. The district court denied her motion for qualified immunity, and the 6th Circuit upheld that decision. She then applied to the Supreme Court to hear her appeal, and it was refused. Justices Clarence Thomas and Samuel Alito put out a blistering dissent from the denial of certiorari, slamming the Court’s 2015 majority ruling on gay marriage in Obergefell v. Hodges. Thomas wrote:
“It would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law. But it is quite another when the Court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause, leaving those with religious objections in the lurch.”
Thomas went on to say the gay marriage ruling “enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss.”
The Court then heard arguments in two cases: whether Delaware may continue to discriminate against judicial candidates based on political party affiliation and a dispute between Texas and New Mexico regarding water rights.
Tie Goes to the Runner
The problem with having an even number of justices is the potential for a tie. As in a sporting contest, judicial ties satisfy no one, clarify nothing, and amount to a big fat waste of time and money for everyone involved. The principal way cases come to be argued at the Supreme Court is through its appellate jurisdiction, which often resolves a split in the circuits. This happens if two (or more) of the countries’ 13 Circuit Courts of Appeals rule differently on the same issue. One circuit court may decide a firearm waiting period is unconstitutional, while another holds a similar law is perfectly legal.
Such widely disparate outcomes, based on federally guaranteed rights, presents an untenable situation. That explains why the Supreme Court hurries to rule on splits in the circuits and it’s best to have an odd number of justices. If there is a tie vote on the outcome of a case at the Supreme Court, the lower court ruling stands, allowing for a continued split in the Circuits and Americans living under two different sets of laws. Given that so many hot-button issues have recently been decided by 5-4 votes, the potential for instability is great with an even number of justices.
There are ten cases calendared this term before Barrett’s examination concludes in the Senate. If she is confirmed, it remains to be seen whether she would rule on those cases or not. The Constitution is remarkably brief in its instructions on the Supreme Court, with none that might be helpful here. So the institution must turn to itself and quietly deliberate.
Read more from Scott D. Cosenza.