The Supreme Court has stayed a Utah federal district judge’s decision that struck down the state’s ban on same-sex marriage. The Supreme Court’s order stops for now a wave of same-sex marriages across the state. Utah’s ban is reinstated and will remain in force pending appellate review.
There were no dissents from the Supreme Court’s stay order, which suggests that all nine Justices agree with it. However, the order tells us nothing reliable about how the Court views the merits of Judge Robert James Shelby’s ruling that a ban on same-sex marriage is unconstitutional.
On the other hand, as Ed Whelan points out, the Court’s order tells us plenty about how it views the decision of Judge Shelby (an Obama appointee) not to stay his order. That decision was, in Ed’s words, “wildly irresponsible.”
By not staying his order, Judge Shelby was inviting same-sex marriages to occur before the merits of his ruling could be reviewed. But if his ruling is reversed, those marriages will be void ab initio.
I agree with Ed that Judge Shelby appears to have been sowing chaos in order to alter the terrain while the appeal of his ruling is pending. The Supreme Court was right to thwart this effort.
The arrogance of Judge Shelby’s stance should also be noted. The smallest amount of judicial modesty dictates that a single federal judge, whatever his or her abilities, is inherently too fallible to override a state’s marriage laws, absent judicial review, for any period of time. Yet this is what Judge Shelby attempted to do.
Judge Shelby is hardly the only arrogantly activist federal district court judge. Judge Richard Leon displayed a breathtaking arrogance in striking down the NSA phone data search program in the face of clear Supreme Court precedent under which the constitutionality of the program should be upheld.
Perhaps it is time for the Senate to increase its level of scrutiny of district court judge nominees. Filibustering no longer remains an option, but a “down” vote still is. If Republicans gain control of the Senate, they should seriously consider using that option at the district court level during President Obama’s final two years in office.
UPDATE: If the Republicans gain control of the Senate, they could change the rules to bring back the filibuster. But I’m not sure I would favor filibustering district court judge nominees.