In recent weeks, the U.S. Supreme Court has decided—by way of injunction, stay, unsigned order, and wordless denials of cert petition—some of the most urgent social and ideological issues facing the country. We have no opinions to read or dissents to celebrate. Just wordless orders that some things should change while others remain the same. Then loads of scurrying around and headlines. Are we in some persistent state of high-level judicial emergency? Not really, despite the dramatic speed at which Texas abortion clinics close and reopen, or same-sex marriages are on or off, or voter ID is needed and then not needed.
For some reason, we have reached a moment in Supreme Court history at which unsigned, unexplained reasoning is the new black. No more briefing, argument, or opinion-writing. No time. It will all be done via high-frequency radio signaling and colloquies with the voices in our heads. Linda Greenhouse asks the same question another way: “What on earth is the court doing and what—with saying hardly a word—is it telling us?”
In the realm of voting rights, the high court has now allowed Ohio to curb some early voting, blessed the demise of North Carolina’s same-day voter registration, and blocked Wisconsin’s new voter ID law from going into effect for this midterm election. As Richard Hasen has explained, all this mixed signaling can be reconciled. Reconciled, yes. But thus far it has also gone wholly unexplained. Over an even shorter period of time, the high court has declined to hear appeals from five states attempting to revive their same-sex marriage bans, and it has stayed and then reinstated another same-sex marriage ruling from a different appeals court. Again, the silence has been almost deafening.
Finally, on Tuesday we saw the court issue another monumental nondecision, where, by a margin of 6–3, the justices allowed Texas abortion clinics to remain open, at least for a while, while a challenge to the big omnibus abortion law from Texas works its way through the lower courts. In the short term, some of the clinics that were required to implement costly retrofitting and two clinics that could not operate without obtaining admitting privileges for their doctors will stay open. But why the justices reinstated the injunction, or for how long, still remains a mystery. The same court decided this same issue in a different manner a year ago. We know what happened, but not why.
October is suddenly the emergency-est month. Maybe it’s the lower courts that have gone mad, with all these wacky rulings that need to be stayed, or unstayed, or what have you. But this month the court seems to be doing more unexplained deciding, or quiet deciding not to decide, than we have seen in years.
I asked Walter Dellinger, former acting solicitor general for the Clinton administration, whether this is, in fact, unprecedented. He says that it’s not unusual in an election season to see efforts to change statewide voting procedures blocked or accepted without explanation at the high court. What is different, he argues, is the confluence of these last-minute emergency stays and denials and injunctions extended into the realm of same-sex marriage and abortion regulations as well.
“This is a time of unprecedented and profound change,” explains Dellinger. “You have a country that is polarized in ways it has never been, and legislatures willing to make two absolutely unprecedented changes to our legal systems.” The first, he explains, is a system of new voter ID laws that, in his words, “cut back on 250 years of expanding the franchise” in ways that we have not seen since Reconstruction. The other is a “completely mendacious rationale for taking away reproductive choice.”
Between the state legislatures getting way out in front of the court’s doctrine on voting rights and abortion, and the court’s decision to hang back and wait for conflicting decisions from different circuit courts in the marriage equality cases, what we seem to be witnessing is a Supreme Court that is dealing with events moving at lightning speeds. It may be attempting to impose what Dellinger describes as “procedural dignity” upon the process. Even when the court issues late-night stays and unsigned orders, the court is clarifying that it gets the last word, even when the last word is haughty silence.
Thus, in the voting rights context, the court is merely ensuring that states do not put new systems in place immediately prior to the midterm elections. In the marriage equality context, the court is simply affording the states the opportunity to arrive at the correct conclusions on their own schedules. And in the Texas abortion context, the court is reacting to a set of Texas regulations that appear to completely reinterpret (if not blatantly disregard) the rule announced by the court itself in its 1992 decision in Planned Parenthood v. Casey. As Greenhouse notes, the 5th U.S. Circuit Court of Appeals more or less ignored Casey when it ruled on the Texas abortion regulations: “In holding that the forced closing of every abortion clinic south and west of San Antonio, requiring women to travel hundreds of miles to exercise their constitutional right, was not an undue burden in purpose or effect, the Fifth Circuit ruled in blatant disregard of the Casey standard.” Really, was the court going to permit that to happen? When the court bats these issues away, it’s merely saying that nobody rushes the highest court in the land. Not even Texas.
This does not mean that there aren’t five votes at the Supreme Court to overturn Roe v. Wade, Dellinger cautions. One shouldn’t take the Tuesday injunction as a sign that Texas will lose in its efforts to effectively close every clinic in the state. And he worries that three justices—Samuel Alito, Clarence Thomas, and Antonin Scalia—were willing this week to allow all those clinics shut down without ever hearing an argument. Tuesday’s order merely means that the justices are extremely protective of the fact that it’s their prerogative to overrule Casey and not that of the Texas legislature or the 5th Circuit.
With the exception of marriage equality, Dellinger cautions, the outcomes of all these appeals when they are finally briefed, argued, and decided, will be “profoundly conservative.” It’s not that the court has suddenly gone liberal. It’s that it remains fundamentally a Supreme Court Supremacist. Or as Professor Christian Turner, who teaches at the University of Georgia Law School, summarizes in an email, what the high court is really doing is “something more Colbert-like.” The court is telling us, he says, paraphrasing Chief Justice John Marshall’s famous line in Marbury v. Madison that: “It is emphatically the province and duty of the Judicial Department not to say what the law is not. Stay granted. Cert denied. Whatever. Go away.”
Most of us who have been trying to fathom the voting patterns at work in the strange 7–2, 6-3, splits in the recent mass of denials, orders, and stays, have been focused on Anthony Kennedy, assuming as always that he is the primary architect of each and every big move at the court. But it’s worth recalling that this is very much John Roberts’ court and that preserving the appearance of uniformity and unanimity is his landmark project at the high court. As longtime Supreme Court practitioner Lisa Blatt told Adam Liptak this past summer, “The chief has done a remarkable job this term navigating divisions and dodging the most controversial of issues.” Sometimes silence, unsigned orders, and summary denials hide a multitude of conflicts. In other words, why get all fractious and angry years before a case is properly before the court? It is enough to bat them away and let the lower courts know who the real decider is.