The Supreme Court is not only an esteemed body in U.S., but it also has the unique luxury of picking and choosing the cases appealed to it. Unlike the lower federal courts which must adjudicate all cases properly appealed to it, the U.S. Supreme Court has the privilege of defining its own workload and sifting through the 7,000+ appeals to the Court each year. In Court lingo, it is called a grant or denial of certiorari. If the Court grants a case certiorari or "cert" for short, it has decided to decide your case. (It must then move to decide the merits of the case.) The grant or denial of certiorari s a mysterious and little understood process and the Justices are under no obligation to explain why they granted or denied a case. All we know for sure is "The Rule of 4", at least four justices must vote to grant a case cert.
Yesterday, Adam Liptak of the New York Times wrote an eye-opening article about which justices likely voted to grant the two recent gay marriage cases cert and why they did so. The article is instructive because Liptak does a particularly good job explaining the strategic considerations that justices have in their mind as they weigh a grant of cert. He speculated on their motivations based on their questions and statements during oral argument. His conclusion is a bit surprising. He writes, "As it turns out, it would seem the conservative members of the court, making a calculation that their chances of winning would not improve with time, were behind the decision to take up the volatile subject." I felt like the Law and Order "Dun Dun" gong went off to follow that sentence.
Liptak's conclusion was contrary to my thinking. I was frankly expecting an aggressive grant by one of the liberal justices who wanted to settle the issue with some finality. An aggressive grant is a calculated cert grant made by a Justice who wishes to weigh in on an issue and believes they have the votes to be in the winning majority on the merits. But if Liptak is right, then this is still an aggressive grant, albeit by the most conservative justices, in contrast to a defensive denial (a denial of cert vote based on the caluclation that you do not have enough votes to win on the merits for your preferred position).
This development is sure to reignite the debate about the undemocratic nature of the Court. "Nine old men with old ideas" is how FDR derided the Court that continuously frustrated his New Deal policies. If Liptak is right, and I believe he is, then the age-old political science question of counter-majoritarianism once again arises. It goes to the undemocratic nature of the Court and the charge goes something like this, "Why do we permit 9 unelected people from 'a narrow background' to decide hot button issues for the rest of the country" (to paraphrase Justice Kennedy). But really, if Liptak's scenario is right, then it goes something like this, "Why do we allow a small group of people, who are totally unrepresentative of the U.S. popuation, to have the power to thwart the majority's will because their personal and ideological views of gay marriage led them to rule against it?" (For indications of personal views influence on gay marriage, refer to Scalia's speculation that the science is yet unclear about the effect on children raised by gays and Alito's charge of the newness of gay marriage that he said was newer than cell phones or the internet---both rationales not based in law.)
To be fair, the countermajoritarian debate about the Court in political science is not about the Courts working in opposition to public opinion directly, but rather that the Court can overturn the laws written and passed by democratically elected legislatures and executives.
It's unfortunate that we won't really know until the Justices release their papers long after their death and when I won't be around. Between the Chief Justice switching his vote in the Affordable Care Act case and these cases, those are going to be quite some juicy papers!