Iirc it takes four Justices to agree for the Court to hear a case. I’m guessing Alito, Scalia and Thomas wanted to hear the case, Kennedy (who we know is pro gay marriage) and Roberts (who we assumed is) voted with the Libs to keep it off the docket.
I’m glad you brought up Ginsburg as your example. I see her hand at work here. While she’s a pro abortion extremist, she’s actually anti Roe v Wade. In her belief the Court should have left abortion alone, letting the states and lower courts hash it out for several more years until there was societal critical mass on the issue and the Court could have ruled in a less divisive environment.
That seems to be the strategy here. Yes, the Court will eventually hear a case and will eventually rule on it (in favor of it). But only once such a ruling will be seen as an afterthought (by most Americans anyways) on what is a well-established “right” and practice.
I predicted no cert, and no cert will be the rule until a Circuit votes against gay marriage. The 9th is a foregone conclusion, with likely no stay given by that court or SCOTUS. Only the 5th, 6th, 8th and 11th left. Do any want to give SCOTUS the excuse to expressly nationalize gay marriage? My guess is they go along. Get a socially conservative court majority in 5 or 10 years (evidenced by striking down Roe, perhaps) and then take another shot.
That's possible, but I think unlikely, because no one (not Alito, Scalia or Thomas) indicated a dissent from the denial of cert. What I think happened is that Alito, Scalia and Thomas voted not to hear the case because they believe that, if the case is heard, Kennedy will vote with the four liberals to find a nationwide right to gay marriage, and they would rather let these lower court rulings stand than have a definitive SCOTUS decision upholding gay marriage.
I find this explanation very interesting. It is from Ed Whelan of National Review:
“For what it’s worth, here’s my theory explaining yesterday’s order denying review in the SSM cases:
One or more of the three conservative justices who might most be expected to object to denial—that is, Scalia, Thomas, or Alito—instead concluded that denial was the best course. Why? Because that justice (or those justices) became convinced that Kennedy was beyond persuasion and that he was a certain fifth vote to invent a constitutional right to same-sex marriage. On that understanding, the least-worst option would be to deny review and thus (for the time being, at least) prevent the Supreme Court from placing its formal imprimatur on the developments below.
I think that this is the only theory that adequately explains why none of these three justices publicly registered a dissent. In particular, I don’t think that a competing theory—that the Chief Justice voted to deny but that Scalia, Thomas, and Alito all voted to grant—can explain the absence of a public dissent.
I don’t think that there’s any difficulty explaining why the four liberals would go along with the denial. Even if they’re equally confident of Kennedy, it’s much easier from their perspective to let the lower courts do the spadework and to intervene only if and when a court rules against a constitutional SSM right.”