Scalia and Thomas criticize inconsistent cert denials, cite gay-marriage cases
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Justices Clarence Thomas and Antonin Scalia are citing cert denials in gay-marriage cases as an example of the Supreme Court’s inconsistency in deciding when to review state laws struck down as unconstitutional.
Thomas and Scalia referred to the same-sex marriage cases in an immigration case that had “nothing to do with the marriage controversy,” SCOTUSblog reports. The blog sees the justices’ statement as “a strong hint” that they likely voted to hear the gay-marriage cases, but were unable to persuade two other colleagues to join them. Four votes are needed to grant cert.
Thomas wrote the statement (PDF), joined by Scalia, in a case involving an Arizona constitutional amendment that bars the pretrial release of immigrants charged with serious crimes who are living in the country illegally. The San Francisco-based 9th U.S. Circuit Court of Appeals struck down the amendment, and the Supreme Court refused to stay the ruling on Wednesday afternoon.
Thomas wrote that he joined his colleagues in denying the stay application in the immigration case only because four justices appeared unlikely to vote to grant cert. “That is unfortunate,” Thomas wrote.
Thomas said the court has recognized a strong presumption in favor of granting cert when a federal statute is struck down as unconstitutional. And the Supreme Court often reviews decisions striking down state laws, he continued. “But for reasons that escape me, we have not done so with any consistency, especially in recent months,” he wrote. The cases he listed next were denials of certiorari or stays in the recent gay-marriage cases, SCOTUSblog explains.
The Arizona immigration case is Maricopa County v. Lopez-Valenzuela.
SCOTUSblog points out that previous gay-marriage cases were denied in the absence of a circuit split. Several petitions are expected to be filed now that the Cincinnati-based 6th U.S. Circuit Court of Appeals created a split by upholding gay-marriage bans.
How Appealing notes the story, along with coverage by the Associated Press. BuzzFeed also has a story.