UPDATED 5:41 p.m. The post has been expanded and updated.
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The Supreme Court has issued orders following its Conference earlier Friday, but it did not grant review in any new cases. The Court dismissed a case involving a dispute over the destruction of a private home in Baltimore because the individual who filed the case, without the assistance of an attorney, failed to file his opening brief on the merits last month and cannot be located. The case was Chen v. Mayor and City Council of Baltimore. The case — in which the Court granted review on November 7 — dealt with a federal judge’s authority to permit more time to serve legal papers on the other side in a case. The Court also ordered a new hearing on a criminal case it had already heard, in November (see the post above).
The release of orders on Friday had been eagerly awaited across the country, because the Court, at its private Conference, was scheduled to take its first look at the new round of cases on state power to ban same-sex marriage. The Court’s next chance to issue any order on those cases will be at 9:30 a.m. Monday, with the release of a lengthy list of actions on new cases. If no action on the five marriage cases comes then, the cases are likely to be rescheduled for a Conference next Friday.
The Court last considered a group of appeals filed by same-sex couples at the start of the current Term, and chose on October 6 to bypass all five cases. At that time, there was no current split among federal appeals courts on the constitutionality of state bans on same-sex marriage or on official recognition of already existing same-sex marriages performed elsewhere. Since then, however, a split has developed with the November decision by the U.S. Court of Appeals for the Sixth Circuit, upholding bans in the four states in its geographic region.
Appeals from the Sixth Circuit ruling are now pending at the Court, along with an appeal from a federal trial judge’s ruling upholding a ban in Louisiana. Those are the five cases the Justices were scheduled to examine at the first Conference after returning from a winter recess. Hours after that Conference had ended, the Court issued a few new orders, but it did not accept the same-sex marriage cases for review, or any other cases on other questions.
Attention will now shift, on the marriage cases, to next Monday morning, when the Court is scheduled to make public (at 9:30 a.m.) a lengthy list of orders dealing with a wide range of cases considered on Friday. There is no way to know, at this point, whether the Court will grant any new cases as part of that set of new orders.
Almost no one expects the Justices to deny review in the new round of same-sex marriage cases, because of the clear split in authority on that question among the federal appeals courts. (Five federal appeals courts have already ruled on the question, and a sixth appeals court — in the Fifth Circuit — held three hours of hearings on Friday in cases from Louisiana, Mississippi, and Texas. Some observers who sat in on those hearings sensed that the three-judge panel was leaning toward striking down those state bans. There is no timetable for that court to rule. If the Supreme Court were to grant review soon of the cases pending there, federal appeals courts that have not yet ruled on a new case may stand down until the Justices have ruled.)
If the Justices do not act on the present round of same-sex marriage cases on Monday, they are expected to reschedule them, later in the day on Monday, for a new look at the private Conference scheduled for next Friday morning. If at that time it chooses to review one or more of those cases, the Court could announce that before the end of the day next Friday — in time for hearings in April and a final decision by the end of the current Term, likely in late June.
