Some Thoughts on a “Silent” Supreme Court

There has been much discussion about the Supreme Court’s recent string of highly consequential actions in which the justices have been conspicuously silent about what they are doing. Because of the great lengths the justices go to lay out the precise reasoning of their decisions, they often proudly proclaim the Court as the most transparent of the three branches of government. But this kind of transparency has not been in evidence when it comes to the most significant happenings at the High Court this Term. Most notably, when the Court refused certiorari in a series of same-sex marriage case appeals, no reasons were given. Although denials of certiorari typically do not come with explanations (it would be impractical, considering the thousands of cases the Court denies every term), some people thought such a momentous denial would at least elicit a disgruntled justice to issue a dissenting statement. But no. The Court was silent.

Predictably, some have voiced frustration with this reticent turn. How can the Court regularly intervene on such major constitutional issues yet not give the country any real guidance on what it is doing? Isn’t this the Court’s responsibility? Isn’t the very legitimacy of the Court based on its stated reasoning and not just on the consequences of its actions? These are all good points. But these kinds of criticisms are not particularly new, and it’s worth putting them into historical perspective.

For example, following Brown v. Board of Education (1954), the Court issued a series of per curium decisions extending the desegregation requirement of Brown from public schools to other state-operated facilities—beaches, golf courses, buses, parks. The reasoning in these opinions was little more than a citation to Brown. Many legal scholars asked what the Court was doing here. This extension of Brown was particularly curious because the Brown decision seemed to draw on the specific costs of racial segregation in schools as a basis for its decision. Could the same psychological harms that (the Court suggested) resulted from state-enforced segregation in schools also be found in state-enforced segregation on golf courses and beaches? Critics of these decisions had a point, but with some historical perspective these criticisms appear small in connection with the broader work being done by the Court to advance the cause of civil rights.

Like the post-Brown per curium decisions, the Court’s reticence on same-sex marriage will fare just fine in the judgment of history. The justices know this. They are playing the long game.

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