Timothy Kincaid wonders:
[I]t should be noted that the decision to grant or deny certiorari is not a majority vote. It takes but four justices to decide that a court will hear an appeal. This suggests that either the conservative end of the court is hoping to wait for an appeal that better fits their opposition, or (despite long supposition otherwise) there are not four justices on the Supreme Court that oppose marriage equality and find it’s prohibition to be within the confines of constitutional enactment by the states.
Jeffrey Toobin thinks it’s “possible that neither the liberal nor the conservative bloc felt confident enough of Kennedy’s vote to risk letting him decide the case”:
The conservatives have a special reason for delay. Ginsburg, at 81 the oldest justice, will probably leave during the next president’s term. A Republican president would replace Ginsburg with a solid conservative vote and make Kennedy’s vote irrelevant. So waiting might be an appealing option for them.
The liberals had their own reasons for delay.
Same-sex marriage has marched with great speed across the country. Today’s non-decision means that more than half the states, with well more than half the population, have marriage equality. Those facts create their own momentum. More time equals more states, which might (the theory goes) make Kennedy’s vote easier to get a year from now.
Noah Feldman suspects that the Justices didn’t want to incite a backlash:
Inevitability, it might be thought, is what the Supreme Court waits for before making any landmark decision. But in this case, there is another major consideration: The justices are also worried about fueling a backlash that would render their decision illegitimate, even if it seemed inevitable. The great worry of the Supreme Court – or at least of Justice Kennedy – is that a premature gay-marriage decision would produce the kind of substantial public disagreement that followed Brown v. Board of Education and Roe v. Wade.
Cass Sunstein argues along the same lines:
Many people are stunned by the U.S. Supreme Court’s refusal to review any of the recent lower-court decisions requiring states to recognize same-sex marriages. They shouldn’t be. The court’s silence is a fresh tribute to what Yale law professor Alexander Bickel, writing in the early 1960s, called “the passive virtues.” For the Supreme Court, not to decide is often the best course, especially when the nation is sharply divided.
Bickel was no critic of the liberal Warren Court of the time. He vigorously defended Brown v. Board of Education, striking down school segregation. More broadly, Bickel believed that the court had an important national role as the arbiter of what was required by constitutional “principle.” Nonetheless, he thought that the justices had to be both humble and strategic. An aggressive insistence on vindicating fundamental principle could tear the country apart – and undermine the justices’ own goals in the process.