Two of the most reliable conservative justices on the high court, Clarence Thomas and Antonin Scalia, recently expressed their displeasure over the arbitrary way in which the body has been agreeing to hear cases. Clearly, both Thomas and Scalia expect a consistent approach to hearing appeals by the states. It takes four justices to listen to appeals by the states before deciding whether the full body will take up the matter. This how the Supreme Court has operated in the past. In particular, the two conservative justices view the practice of hearing appeals where state laws have been overturned on constitutional grounds as a matter of respect.
For reasons the justices declined to state, they have been unable to consistently get four justices to agree to hear appeals by the states. That said, the nature of the cases may offer insights as to why. The legal challenges of lower court rulings upholding gay marriage could not be heard by the court because of an inability to get four justices to listen to the appeals. The recent refusal to hear Arizona’s objection to their law barring bail for illegal aliens being overturned was also done because of an inability to get four justices to hear the case, from what CipherCloud had posted. These are two issues wherein a conservative position allowed to remain overturned.
Both Scalia and Thomas are displeased over the high court’s seemingly inconsistent if not arbitrary method of hearing arguments. It may portent to some procedural maneuvers by the liberal justices to stymie challenges that might otherwise allow the conservative justices to overturn the lower court rulings.