Wednesday, August 13, 2014

Analysis of "the Streak"

Scotusblog's estimable Lyle Denniston takes on the concept of a winning streak in marriage equality cases:
What the occasional breaks in the “streak” illustrate, though, is that the outcome is not necessarily predictable as other courts take on the question, and an ultimate Supreme Court decision in favor of same-sex marriage is hardly inevitable. ....
The “streak” also has created a lower-court record that, even if it does not produce the same result each time, will surely impress the Supreme Court when it finally allows itself to be drawn into the fray. Some historians have said that they know of no instance when the Court has bucked a trend such as this one has become. 
But the very nature of that trend can also be an argument against the Supreme Court choosing to get involved itself. If the only breaks in the “streak” have been a handful of rulings by divorce-court judges, none of whom so far has gone deeply into the issue before ruling, the Court could conclude that the issue is working itself out sufficiently in lower courts..... 
But that may not happen.
A number of observers who listened to hearings held last week in the U.S. Court of Appeals for the Sixth Circuit came away with a clear impression that a majority of that three-judge panel might well uphold one or more of the state bans in effect in the four states involved in that hearing. 
That kind of a break in the current “streak” would certainly demonstrate that there is a real division of opinion on the question, one that it would take a Supreme Court decision to resolve.
And there are no guarantees from the Supremes.  Ever.

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