Two interesting posts from Tom Goldstein on today's oral argument before the Supreme Court. The first speculates that--based on his reading of the oral argument tea leaves--that there are two likely outcomes, one of which could lead to the court splintering badly:
First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8. Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it.
Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.
(The puzzle will be what judgment the Court will enter if there are, for example, three votes to dismiss as improvidently granted, two to find no standing, three to reverse, and one to affirm.)
The second puzzles over whether it will be possible for the court to get to a 5-vote majority:
At least insofar as the oral argument is revealing, the puzzle of Hollingsworth is how the Court will “get to five” – how five members of the Court will agree on the judgment.
This is a recurring dilemma when there is a threshold question in the case – here, the petitioners’ standing to defend Proposition 8. The problem gets even bigger when you add in the possibility that one or more members of the Court do not want to decide the case at all – here, Justice Kennedy’s suggestion that the writ of certiorari should be dismissed.
There is only one question on which it seemed five Justices might agree: the judgment should be vacated because the petitioners lack standing. The Chief Justice and the four more liberal members of the Court indicated their sympathy for that position. ...
But assuming that the Court does not vote to vacate the judgment for lack of standing, and therefore reaches the merits, what then? There seem to be four votes to reverse and uphold Proposition 8 (the Court’s conservatives) and four to affirm (the Court’s more liberal members). Justice Kennedy is the ninth vote, and he suggested that he would prefer the Court not decide the case. ...
But whether a Justice can decline to decide a case on the ground that it should be dismissed, when no development has occurred since certiorari has been granted, is a difficult and debated question in the Court. (Ironically, one of the most relevant authorities is an early predecessor to gay rights litigation, New York v. Uplinger.) If Justices were perfectly free to do so, then in theory the Court’s “rule of four” – that four members of the Court can vote to grant certiorari – would be in jeopardy: five Justices who did not grant certiorari could simply refuse to decide the case. On the other hand, a Justice could reserve the power not to decide the merits for extraordinary cases.
It is an interesting question. As Justice Harlan once explained:
I do not think that ... voting to dismiss a writ after it has been granted can be justified on the basis of an inherent right of dissent. In the case of a petition for certiorari that right, it seems to me-again without the presence of intervening factors-is exhausted once the petition has been granted and the cause set for argument. Otherwise the ‘rule of four’ surely becomes a meaningless thing in more than one respect. First, notwithstanding the ‘rule of four,’ five objecting Justices could undo the grant by voting, after the case has been heard, to dismiss the writ as improvidently granted-a course which would hardly be fair to litigants who have expended time, effort, and money on the assumption that their cases would be heard and decided on the merits. While in the nature of things litigants must assume the risk of ‘improvidently granted’ dismissals because of factors not fully apprehended when the petition for certiorari was under consideration, short of that it seems to me that the Court would stultify its own rule if it were permissible for a writ of certiorari to be annulled by the later vote of five objecting Justices. Indeed, if that were proper, it would be preferable to have the vote of annulment come into play the moment after the petition for certiorari has been granted, since then at least the litigants would be spared useless effort in briefing and preparing for the argument of their cases. Second, permitting the grant of a writ to be thus undone would undermine the whole philosophy of the ‘rule of four,’ which is that any case warranting consideration in the opinion of such a substantial minority of the Court will be taken and disposed of. It appears to me that such a practive would accomplish just the contrary of what representatives of this Court stated to Congress as to the ‘rule of four’ at the time the Court's certiorari jurisdiction was enlarged by the Judiciary Act of 1925. In effect the ‘rule of four’ would, by indirection, become a ‘rule of five.’ Third, such a practice would, in my opinion, be inconsistent with the long-standing and desirable custom of not announcing the Conference vote on petitions for certiorari. For in the absence of the intervening circumstances which may cause a Justice to vote to dismiss a writ as improvidently granted, such a disposition of the case on his part is almost bound to be taken as reflecting his original Conference vote on the petition. And if such a practice is permissible, then by the same token I do not see how those who voted in favor of the petition can reasonably be expected to refrain from announcing their Conference votes at the time the petition is acted on. [Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 560-62 (1957) (Harlan, J., concurring in part, dissenting in part)]
On the other hand, I am not insensible of the merits of Justice Stevens' argument that dismissal on grounds that cert was improvidently granted can be an appropriate exercise of judicial restraint:
As long as we act prudently in selecting cases for review, there is relatively little to be lost, and a great deal to be gained, by permitting four Justices who are convinced that a case should be heard to have it placed on the calendar for argument. It might be suggested that the case must be decided unless there has been an intervening development that justifies a dismissal. See generally Rice v. Sioux City Cemetery, 349 U.S. 70, 75 S.Ct. 614, 99 L.Ed. 897 (1955). I am now persuaded, however, that there is always an important intervening development that may be decisive. The Members of the Court have always considered a case more carefully after full briefing and argument on the merits than they could at the time of the certiorari conference, when almost 100 petitions must be considered each week. Nevertheless, once a case has been briefed, argued, and studied in chambers, sound principles of judicial economy normally outweigh most reasons advanced for dismissing a case. Indeed, in many cases, the majority may remain convinced that the case does not present a question of general significance warranting this Court's review, but nevertheless proceed to decide the case on the merits because there is no strong countervailing reason to dismiss after the large investment of resources by the parties and the Court.
A decision on the merits does, of course, have serious consequences, particularly when a constitutional issue is raised, and most especially when the constitutional issue presents questions of first impression. The decision to decide a constitutional question may be the most momentous decision that can be made in a case. Fundamental principles of constitutional adjudication counsel against premature consideration of constitutional questions and demand that such questions be presented in a context conducive to the most searching analysis possible. ... The policy of judicial restraint is most salient in this Court, given its role as the ultimate expositor of the meaning of the Constitution, and “perhaps the most effective implement for making the policy effective has been the certiorari jurisdiction conferred upon this Court by Congress.” Rescue Army v. Municipal Court, 331 U.S. 549, 568, 67 S.Ct. 1409, 1419, 91 L.Ed. 1666 (1947). If a majority is convinced after studying the case that its posture, record, or presentation of issues makes it an unwise vehicle for exercising the “gravest and most delicate” function that this Court is called upon to perform, the Rule of Four should not reach so far as to compel the majority to decide the case. [New York v. Uplinger, 467 U.S. 246, 250-51 (1984) (Stevens, J., concurring).]