On Thursday the U.S. Supreme Court declined to halt a ruling by the U.S. Court of Appeals for the 9th Circuit which had overturned an Arizona constitutional amendment banning bail for undocumented immigrants charged with serious crimes. As a result, the Arizona amendment is now invalid and cannot be enforced by the state, though state officials may still try to get the Supreme Court to hear their appeal. But even with an appeal pending, the amendment has no force.
What's especially notable about this action by the Supreme Court is that Justice Clarence Thomas, joined by Justice Antonin Scalia, used the opportunity to rebuke his fellow justices for their refusal last month to hear any new gay marriage cases. Here is what Thomas had to say in today's denial of application for stay:
I join my colleagues in denying this application only because there appears to be no "reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari." That is unfortunate.
We have recognized a strong presumption in favor of granting writs of certiorari to review decisions of lower courts holding federal statutes 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. But for reason that escape me, we have not done so with any consistency, especially in recent months. [Citations omitted.]
Thomas then cites four cases where the lower federal courts invalidated state bans on gay marriage (in Oklahoma, Utah, Virginia, and Wisconsin, respectively), yet the Supreme Court refused to hear any of the appeals arising from any of those judicial invalidations. Those states, Thomas plainly suggests, deserve to have their appeals heard in full by a fully attentive Supreme Court.
This is quite a statement from Justice Thomas. Not only has he castigated his fellow justices for lacking a coherent judicial approach, he has also clearly signaled his own (and Scalia's) willingness to rule on the constitutional merits of this issue. In other words, Clarence Thomas threw down the gauntlet and publicly challenged the Court to take up a gay marriage case. We'll see if the other justices pick it up.