What Constitutes an Emergency?

The Supreme Court will stay a lower court’s ruling only for the benefit of politics, not people.

Jody, left, and Maria May-Chang greet as couples gather at the Ada County Courthouse in Boise, Idaho, on Oct. 8, 2014, to apply for same-sex marriage licenses
Jody, left, and Maria May-Chang greet as couples gather at the Ada County Courthouse in Boise, Idaho, on Oct. 8, 2014, to apply for same-sex marriage licenses, moments prior to U.S. Supreme Court Justice Anthony Kennedy’s order blocking the action.

Photo by Patrick Sweeney/Reuters

The Supreme Court has been making front-page news over the past year in an unusual way—using a procedural move that is usually discussed only in academic footnotes. Unfortunately, in each case, the court has been doing so in a highly political way that puts abstract principles before the needs of actual people with actual problems.

The procedural move is called a “stay,” and it’s back in the news today. Early Wednesday, Justice Anthony Kennedy issued a stay, albeit a temporary one, in a same-sex marriage case out of Idaho and Nevada. It followed an opinion Tuesday from the 9th U.S. Circuit Court of Appeals striking down both states’ bans on same-sex marriage. The opinion was forceful and clear, and the court required the states to implement the decision immediately.

Early Wednesday morning, Gov. Butch Otter of Idaho filed a request for an emergency stay from the Supreme Court. In essence, the governor was asking the court to put the lower-court decision on hold while the state has a chance to appeal the case to the Supreme Court. In order to receive a stay, the state has to show that it is likely to win on appeal, that it is suffering harm, and that on balance, the harm the state suffers is greater than the harm the couples will suffer from being denied the right to marry.

This is the normal test for a stay pending Supreme Court review. Given that on Monday the Supreme Court refused to hear cases from three other federal appeals courts that reached the same result as the 9th Circuit, it is hard to imagine the Supreme Court agreeing to review this case, let alone Idaho ultimately winning.

Moreover, it is very hard to say that the state of Idaho is suffering such serious harm that an emergency order should be issued. Idaho’s claimed harm is to the abstract principle of a state being able to control its own definition of marriage (a principle that has been thrown to the wayside again and again in Supreme Court decisions such as Loving v. Virginia) and to a future possible harm in sorting out what happens to all the married same-sex couples if the 9th Circuit is overturned.

On the other side of the scale is the harm of continuing to deny couples access to all the legal rights and protections of being married. Delay on this point can have real and serious consequences to people’s lives. (In Texas, for example, a couple married in Massachusetts wants Texas to recognize their marriage in time for the birth of their child.) The governor’s request for a stay pits an abstract and often-discredited principle, along with possible future complications, against real people’s lives. This should be an easy one for the court.

Yet Justice Kennedy issued a stay. We await the couples’ response to the stay request, and it’s possible the court will lift the temporary stay once it receives the response and quickly reviews it. But given what the court has been doing with stays recently, we have reason to worry.

Over the past year, in several high-profile cases, the court has regularly given more weight in stay decisions to abstract principles than people’s lives. In doing so, the court has used the stay process to reach decidedly political outcomes.

Perhaps the highest-profile emergency petition came in the Wheaton College case, decided in early July, just three days after the Hobby Lobby decision. (Technically, this was an injunction, not a stay, but basically the same rules apply.) In this case, the court granted an injunction to a religious college that did not want to fill out the paperwork required by the Affordable Care Act to be exempt from covering contraception for its employees. Instead of filling out that form and sending the form to its insurer and the Department of Health and Human Services, the court said, the college would just have to write a letter to HHS explaining its objection.

The petition to enjoin the enforcement of the law presented the court with the college’s religious objections on the one hand and women being denied medical care on the other. Religious beliefs are serious principles, but given that Wheaton College now has to write a letter instead of filling out a form, one has to wonder about how serious a harm the form would present. As Justice Sonia Sotomayor mocked in dissent, “Surely the Court and Wheaton are not just objecting to the use of [two] stamp[s] instead of [one] in order to avail itself of the accommodation.”

This should have been easy for the court—a minor administrative inconvenience versus access to health care. But the court found for the college and issued the injunction.

The same thing happened in the same-sex marriage cases that the court refused to hear Monday. Over the course of the past year, five states asked for stays after federal appeals courts found their marriage-restricting laws unconstitutional. The “emergency” that the states claimed justified the stay was the same Idaho claimed Wednesday morning. On the other side, once again, were real people’s lives. Again, the court issued the stays in each case.

The same dynamic was at work just last week in a voting rights case. The lower courts had stopped Ohio from shortening its early voting period, finding it violated the constitutional right to vote. In particular, the shortened period meant there could be no same-day registration for early voters. In asking the Supreme Court for a stay, Ohio argued it would suffer because one of its statutes would be struck down and that election officials would have to alter their schedules. On the other side was the people of Ohio’s access to more convenient opportunities to vote. As with the other cases, the abstract principles were enough to grant a stay, even though people’s ability to participate in democracy would be harmed.

Update, Oct. 9, 2014: The Supreme Court issued a stay Wednesday afternoon allowing North Carolina’s restrictive voting law to take full effect. A federal appeals court had previously temporarily enjoined the law as violating the Voting Rights Act, but as in the Ohio case, the Supreme Court again issued a stay despite disenfranchising voters.

The Supreme Court has played the same political game with denying a high-profile stay in the past year. In November, a district court stopped Texas from enforcing its newly enacted law that required doctors working at abortion clinics to have admitting privileges at local hospitals. As a result of the requirement, Texas would lose more than half of the 41 clinics it had at the time. The lower court found the requirement was likely medically unnecessary and thus unduly burdensome on the rights of women choosing to have an abortion.

On appeal of this preliminary order, the federal appeals court disagreed, finding that it was unlikely that the clinics could prove a constitutional violation, thus allowing the new law to take effect. The clinics appealed this decision to the Supreme Court, seeking an emergency stay to stop the closure of more than half of the state’s clinics. Eliminating so many clinics in such a huge state, the clinics argued, would impact countless women’s lives. In response, the state argued that it had an interest in enforcing its laws.

Real impact on actual people’s lives versus general principles—guess which side the Supreme Court took? Yes, it refused to grant the stay, allowing Texas’ new law to take effect and close almost two dozen abortion clinics, limiting access to medical care for millions of women.

The pattern here is blindingly clear. The court finds emergencies that warrant extraordinary legal action when abstract principles are offended. In doing so, the court is ignoring the effects on real people’s lives—and unflinchingly favoring conservative politics.

In the next week, we can only hope that this pattern is broken. The court should lift the stay in the Idaho marriage case once the case has been fully briefed, hopefully by the end of this week. If it instead extends the stay until the court decides whether to hear the case, the charges of rank politics winning out in the court’s stay procedure will ring louder.

We’ll also be watching for the same behavior in another round of the Texas abortion saga. As of Monday night, the Supreme Court is once again involved in the issue. Another part of the same Texas abortion law requires clinics to change their physical structure to meet the requirements of “ambulatory surgical centers.” These physical changes are unnecessary to good medical care and are extremely costly to implement for most abortion clinics. If implemented, they would shut down all but seven of the remaining Texas clinics.

In August, right before the law was scheduled to take effect, a federal trial court found the law unconstitutional. Last week, the appeals court stayed the lower-court decision, once again allowing the law to take effect. Monday night, the clinics’ lawyers filed a petition with the Supreme Court to lift the appeals court’s stay. The same question is before the court as in November, except this time even starker. The state is arguing that it has a general interest in enforcing its laws, but this law will have an even greater impact on the number of clinics that can serve women in need.

Again, it’s an issue of real consequences for people’s lives versus abstract principles. Let’s hope the court breaks its heartless and blatantly political pattern.