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In explaining why he would not appeal a federal judges order striking down his states ban

on same-sex marriage, Thomas C. Horne, right, Arizonas attorney general, said the Supreme
Court has shown an unwillingness to accept review of the issue. Credit Chip
Somodevilla/Getty Images
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By ADAM LIPTAK
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WASHINGTON People used to complain that Supreme Court decisions were too long and
tangled. Those were the days.
In recent weeks, the court has addressed cases on the great issues of the day without favoring
the nation with even a whisper of explanation. In terse orders, the court expanded the
availability of same-sex marriage, let a dozen abortion clinics in Texas reopen, and made it
harder to vote in three states and easier in one.
Judges and lawyers who used to have to try to make sense of endless, opaque opinions now
have to divine what the Supreme Courts silence means.

There is something odd about the courts docket these days. When the court considers a
minor case on, say, teeth whitening, it receives a pile of briefs, hears an hour of arguments
and issues a carefully reasoned decision noting every justices position.
When the stakes are higher, the court turns oracular.
The courts unexplained orders dont always live up to its otherwise high standards of legal
craft, said William Baude, a law professor at the University of Chicago. The court doesnt
tell us its reasoning, and we dont even know for sure which justices agree with the result.
It is probably useful to distinguish between two kinds of orders: ones denying petitions
urging the court to hear appeals and ones taking action on emergency applications in cases
pending in the lower courts.
On Oct. 6, the court issued the first kind of order, turning down seven petitions asking it to
review appeals court decisions striking down bans on same-sex marriage. The Supreme
Courts move in short order effectively increased the number of states that allow gay couples
to marry to 35 from 19.
The court receives about 8,000 petitions seeking review every year and accepts roughly 75. It
would be a lot of work to explain why it turns down the rest.
If the court is to do its work, it would not be feasible to give reasons, however brief, for
refusing to take these cases, Justice Felix Frankfurter wrote in a 1950 opinion.
It takes four votes to add a case to the Supreme Courts docket. All a denial means, Justice
Frankfurter said, is that fewer than four justices thought it was a good idea to hear that case.
This court has rigorously insisted that such a denial carries with it no implication whatever
regarding the courts views on the merits of a case which it has declined to review, he wrote.
The court has said this again and again; again and again the admonition has to be repeated.
Thomas C. Horne, Arizonas attorney general, may need another reminder. In explaining why
he would not appeal a federal judges order striking down his states ban on same-sex
marriage, he said the Supreme Court has shown an unwillingness to accept review of the
issue.
In light of that, Mr. Horne said, it would be foolhardy to pursue an appeal to the United States
Court of Appeals for the Ninth Circuit, in San Francisco, and then to the Supreme Court.
The probability of persuading the Ninth Circuit to reverse todays decision is zero, he said.
The probability of the United States Supreme Court accepting review of the Ninth Circuit
decision is also zero.
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That may well be right. But it is an inference from vanishingly thin evidence. And that
evidence, the Supreme Court has repeatedly instructed judges and lawyers, should be
ignored.

The Supreme Courts other recent orders came in response to emergency applications
concerning elections and abortion. It is less clear why those orders did not give reasons,
particularly as some of them came with dissents.
The orders certainly gave lower-court judges very little guidance.
Consider Judge Edith Brown Clement, who recently had to try to figure out what to make of
three of the courts orders in election cases. The justices had allowed Ohio to cut back on
early voting and let North Carolina bar same-day registration and the counting of votes cast
in the wrong precinct. But they had stopped Wisconsin from requiring voters there to provide
photo identification.
Judge Clement, of the United States Court of Appeals for the Fifth Circuit, in New Orleans,
did the best she could to identify a theme.
While the Supreme Court has not explained its reasons for issuing these stays, the common
thread is clearly that the decision of the court of appeals would change the rules of the
election too soon before the election date, she wrote on Oct. 14. The stayed decisions have
both upheld and struck down state statutes and affirmed and reversed district court decisions,
so the timing of the decisions rather than their merits seems to be the key.
Judge Clement guessed right. The Fifth Circuit allowed Texas to use its strict voter ID law in
the November election, and a few days later the Supreme Court agreed, again without
explanation.
Professor Baude said a murmur of reasoning might have been in order.
The justices are being cautious, but too cautious, he said. Theyre used to having time to
be thoughtful. When they issue an order under time pressure, they may want to avoid saying
too much and setting a bad precedent. But when the order reverses a lower court or disagrees
with a dissent they should tell us why, at least a little bit.
At his confirmation hearing, Chief Justice John G. Roberts Jr. said he would strive to make
the courts opinions clear and accessible.
I hope we havent gotten to the point where the Supreme Courts opinions are so abstruse
that the educated layperson cant pick them up and read them and understand them, he said.
In a way, he has achieved his goal. The courts opinions in this falls orders are not abstruse.
They are absent.