Strengthening Constitutional Self-Government

No Left Turns

What the Supreme Court Did (Or More Precisely Didn’t Do) in the Gay Adoption Case

Comments on yesterday’s post entitled "Supremes let Florida gay adoption ban stand" highlight the confusion that often accompanies the Supreme Court’s decision not to grant review in a case. The vast majority of the Supreme Court’s cases are taken for discretionary review. In order for a "discretionary" case to be heard, at least four justices must vote for review. Unsurprisingly, the Supreme Court turns away many more cases than it hears. This is what happened yesterday with the gay adoption case: the Court simply chose not to hear the case. What does that mean? As a legal matter, absolutely nothing. It is black-letter law that the denial of review has no precedential value.

Of course, we can try to read the tea leaves to see what this means politically, and that is what the reporters, including Lyle Denniston over at SCOTUSblog were doing. Yes, it probably means that the justices were recoiling from what would inevitably be construed as another step toward gay marriage. And yes, issues concerning adoption are traditionally state law matters, although the fact that the 11th Circuit had weighed in on the question rather than the Florida Supreme Court mitigates in some measure against such a rationale to deny review. The important thing to remember, however, is that this is all speculation. The Supreme Court yesterday chose not to hear the case. The only thing that can be said with certainty is that the outcome of that decision leaves in place the decision of the court below,* and thereby the law stands.

*[Editor’s Note: There is a pending challenge to the composition of the en banc 11th Circuit Court which also chose not to hear the case--specifically challenging the recess appointment of Judge Pryor, who cast the deciding vote not to hear the matter. Because I think it is unlikely that the Supreme Court will upset the historical practice of recess appointments, I feel confident saying that the decision below will stand.]

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