A.S. Haley: Scalia’s Prophecy Fulfilled (Sub Silentio)

Monday, October 6, 2014

Sub silentio (literally, “under [the cloak of] silence”) is a legal term of art for the technique of a court that, say, wants to accomplish something like the overruling of an earlier case—without having to admit in express words what it is doing. For whatever political or collegial considerations prevail at the moment, the court finds it more “convenient” to stop short of saying what it is doing, while doing it nonetheless. Then, either a few (or even many) years later, the court can “discover”, say, that the case of W. vs. X was in fact overruled, sub silentio, by the case of Y vs. Z.

Courts also understandably shy away from overturning their own prior decisions. As Justices O’Connor, Kennedy and Souter noted in declining to overrule Roe v. Wade in the later case of Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 844, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), “Liberty finds no refuge in a jurisprudence of doubt.”

Today the United States Supreme Court in effect overruled, without saying so, its earlier holdings in which it expressly declined to declare that homosexuals enjoyed a “fundamental right” to practice their lifestyle without State interference. And the most remarkable thing is that it did so sub silentio, without even issuing any written opinion!

The Court accomplished this astonishing feat by the simple tactic of exercising its power to review lower court decisions. It denied review of decisions by three different Circuit Courts of Appeal striking down bans on same-sex marriages in the states of Indiana, Oklahoma, Utah, Virginia (three cases) and Wisconsin. Those seven decisions are now final, and mean that the same courts could in the future strike down similar laws in six other States within their jurisdictions: Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming... the rest