WASHINGTON — Justices Clarence Thomas and Antonin Scalia are apparently unhappy with the Supreme Court's decision last month not to hear appeals of cases striking down five state bans on marriages for same-sex couples.
The views were expressed, unusually, in an order denying a request by Arizona officials on an immigration issue.
The Arizona officials asked the court to enforce a measure that was struck down by a federal appeals court last month — the measure bars bail for undocumented immigrants — while the state officials try to appeal that decision to the Supreme Court.
In a statement published Thursday and joined by Scalia, Thomas complained that, while the court has generally heard cases when federal or state laws have been found to be unconstitutional by lower courts, the justices "have not done so with any consistency, especially in recent months" — specifically pointing to the various marriage cases that the justices have declined to hear.
As such, Thomas (and Scalia) joined the order denying Arizona's request on Thursday "because there appears to be no 'reasonable probability'" that four justices would vote to hear the appeal of the Arizona case. "That is unfortunate."
Thomas went on to explain, writing that the Supreme Court has "recognized a strong presumption in favor of" hearing appeals when federal statutes have been held unconstitutional. "States deserve no less consideration. ... Indeed, we often review decisions striking down state laws, even in the absence of a disagreement among lower courts," Thomas wrote, noting, among other cases, the court's decision to hear the appeal of California's Proposition 8 marriage ban — an appeal that the court ended up dismissing in 2013 on the technical grounds of standing.
Then, turning to the Supreme Court's current term, Thomas noted, "But for reasons that escape me, we have not done so with any consistency, especially in recent months" — citing the court's decision to deny the marriage case appeal requests out of Utah, Oklahoma, Virginia, and Wisconsin at the start of the term and the stay requests denied since in marriage cases pending in Idaho and Alaska.
Of Arizona's request in the immigration case, and, implicitly, stating the pair's view as to the marriage cases, Thomas wrote, "At the very least, we owe the people of Arizona the respect of our review before we let stand a decision facially invalidating a state constitutional amendment."
Thomas noted that Thursday's Arizona decision was only on a stay request and not a full request for the court to hear officials' appeal, but then added, "Our recent practice, however, gives me little reason to be optimistic."
Thursday's statement, though unusual, was hinted at on Wednesday.
After not having made their views known earlier as to the marriage cases cited in the Arizona case order, Scalia and Thomas did let it be known on Wednesday that they would have granted a stay in Kansas' request that its marriage ban be kept in effect during its appeal of a lower court ruling finding that it is unconstitutional. A majority of the justices disagreed, the stay was lifted, and same-sex couples began marrying in Kansas on Thursday.