The Supreme Court’s today issued a brief list of cases in which review has been granted, which did not include the Perry case, the Windsor challenge to Section 3 of DOMA, or our Diaz v. Brewer case involving domestic partner health insurance benefits for Arizona state employees. The court did not yet issue a list of cases in which review has been denied or in which it has decided to defer making a decision. That list is expected on Monday. There could also be additional cases in which the Supreme Court has decided to grant review at this time that will be announced on Monday.
But, I heard yesterday that the Supreme Court had actually decided not to discuss the Perry case at yesterday’s conference of the justices, so I do not expect anything substantive to be announced about Perry on Monday. I have not heard anything at this point about exactly when the Supreme Court will discuss among themselves whether or not to grant review in the Perry case, or whether or when it will let us know when it will be discussed. The Court does not provide its reasoning regarding when it is making its decisions about most of these matters, and its discussions are kept highly confidential.
At this point, it’s anyone’s guess about exactly when the Supreme Court will announce whether or not it will grant review in any of these cases. I have heard speculation that the Court might wait to decide whether or not to hear the Perry case until it decides whether or not to hear one or more of the challenges to Section 3 of DOMA.. I’ve also heard speculation that the Supreme Court may not decide which, if any, of the challenges to Section 3 of DOMA to hear until the briefing is final in all of those challenges (including the Department of Justice’s most recent requests that the Supreme Court hear the Pedersen case, if it doesn’t grant review in Gill/Massachusetts or Golinski and that the Court hear the Windsor case if it doesn’t grant review in an of the other cases). That briefing will not be done until the latter part of October and the Supreme Court therefore may not issue any announcement about what it will do in any of these cases until after the election. Again, this is speculation, as the Supreme Court keeps its deliberations about which cases to hear secret.