A relatively new phenomenon has developed with Supreme Court Justices writing dissentals when cert is denied. For the most part, lawyers, pundits and the public kinda dig them, as they give us insight into what the justice’s views will be if and when the issue finally gets the nod for a merits ruling. As much as people hate the “shadow docket,” few make a stink about this aspect of it.
But an even more problematic aspect of the court’s shadow docket has received scant attention. These are opinions being issued by justices when the Supreme Court rejects an appeal of a case from a lower court — what are called “cert denials,” or denial of petitions for certiorari.
Who doesn’t love advance warning, not to mention fodder for the argument of how right or wrong the justice is about this issue that so moved him or her as to write about it even though it’s completely gratuitous and of no legal effect?
First, they have no legal effect and are mainly issued by justices today to promote their personal ideological agendas. Conservative justices frequently issue them to complain about how the law was applied in hot-button cases to either disfavor free speech, free religion or gun rights or to improperly favor abortion or L.G.B.T.Q. rights. Liberal justices just as frequently issue them to complain about how death penalty or other criminal justice matters were handled.
When there aren’t enough votes to grant cert (4 out of 9 are needed), the case will not be heard, meaning that whatever is written about a case that will not be heard is legally pointless. There are a breadth of reasons why cert isn’t granted, ranging from muddled arguments below to a fact pattern that failed to properly preserve the issue everyone wants to argue over. But cert denials generally don’t come with explanations, and so we never really know why a case didn’t make the cut. That basically gives the dissenting justice free rein to let loose with their view without concern that a majority opinion will differ with them.
Perhaps more important, the practice of issuing cert-denial opinions is legally objectionable. The Constitution authorizes judges to exercise power as necessary only to resolve live cases or controversies. The original idea was that Congress and the president — political branches answerable to the people — should do most of the governing. Conversely, judges given life tenure and salary guarantees in order to referee legal disputes in a politically impartial manner should be limited to performing that role.
The jurisdiction of the court is limited to “cases and controversies,” meaning that they don’t get to issue advisory opinions or rule on issues of public interest, no matter how extreme, without a live case before the Court. If cert isn’t granted, then there’s nothing before the Court. Yet, these shadow docket dissentals are essentially justices informing the public how they would have ruled in a case over which they have no authority. This is about as advisory as it gets.
But what’s the big deal if they want to give a heads-up on their position on an issue of controversy?
In cert-denial opinions, however, justices frequently prejudge legal questions in ways that create serious impartiality problems in cases the court later accepts for review. A stark example of this is the challenge to New York’s requirement that people demonstrate a special self-defense need for carrying concealed firearms in public that the court is hearing on Wednesday. In a cert-denial opinion issued by Justice Thomas last year, when the court denied review of a ruling upholding a New Jersey concealed-carry requirement similar to New York’s, he made a lengthy historical argument concluding that the Second Amendment protects some form of public carrying of firearms.
Perhaps not surprisingly, this is the argument now being made by the gun rights’ plaintiffs in the New York case. Just as troubling, in a portion of Justice Thomas’s opinion that Justice Kavanaugh joined, they criticized the main lower court ruling upholding New York’s concealed-carry requirement. How can anyone seriously contend that the impartiality of these justices cannot “reasonably be questioned” in the New York case?
Essentially, a justice can broadcast the argument he wants to hear by announcing the ruling he would have made. In the scheme of how to say you’ve prejudged an issue, that’s about as clear as it comes. But as future Supreme Court Justice Orin Kerr asks, can’t this rationale be applied with the same force to the Court’s decisions?
I’m not sure, under this reasoning, why writing opinions itself isn’t objectionable. If “impartiality” means “is open to any view of the law,” hasn’t a Justice who wrote or joined an earlier opinion become partial to a view of the law in the next case?
And, of course, the writing, joining, concurring or dissenting to an opinion is surely a “giveaway” to the justice’s partiality. There is no rule that requires an opinion to be signed, or for the matter, authorizes or denies the other justices’ expression of their views on the opinion. All Supreme Court decisions could be per curiam, without concurrence or dissent, so while we know the outcome, we can’t say with certainty anything more than a majority approve of it.
But there is a difference between a justice exercising his or her duty to rule on a case and controversy before the Court by expressing a view and a justice gratuitously tossing out a bone when there is neither authority nor legitimate purpose to it. Whether the dissentals to cert denials are the justice’s means of virtue signaling or their way of informing the next litigant where they plan to go, and providing a roadmap of how to get there, at least a position taken on a live case, prejudicial though it may be, is part of the job of being a Supreme Court justice, even if it does reveal more about a justice’s bias than it should.
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A petition is live until cert is denied. A tie between denial and dissent regarding cert doesn’t make the issue moot.
But why is a cert dissent signaling, and why does it equal a showing of bias or prejudice? It would be cool if all denials came with an opinion, but volume makes that impossible. The robes also ain’t exactly sitting around the same table all day. Stevens rarely left Boca Raton for the Court, and mostly for OA. I guess they could dissent by email. But why is it some kind of nefarious bias to to argue that this is the kind of case the Court should consider? And isn’t it good to sometimes have the discussion, even if only one-sided, in public?
As we’ve heard time and again in this rickety old Hotel, judges judge. We spend a bunch of time and energy into dissecting decisions to find a non-law basis that we forget. Even as lawyers, we spend time searching for non-law reasons our motion didn’t carry the day or for the adverse-to-us rulings in trial, only to know that judges do judging.
I filed a motion yesterday in a far-flung part of the Swamp. It argues the judge got out of her lane in issuing an order that affects my nonparty client. The court is 400 miles distant. A bit ago, the court set the hearing for 8 a.m. Friday, with live characters. I’ll be climbing in the Swampmobile at about 2:30 a.m. I could think the judge just don’t like what I wrote, but it could also be that she thinks it important enough to address it right away and that’s when there’s time. What I know is that the judge will judge, in part because lawyers do lawyerin’. I’ll be there to make sure the judge judges.
And the Justices are judges. Want a cool study? I wonder how often a Justice writes a cert dissent, only to decide differently than what observers expect when a similar issue gets cert.
If the Court isn’t going to hear a case, then it shouldn’t say anything about it without good reason. Or is that too simplistic a formulation for you? Or do you not agree? Your experience might be dulling your sensitivity to prejudgment, but it is a concern, especially when there isn’t another court to complain to if you get railroaded. I agree that this discussion is important, and I would rather have it occur in the open, but your refusal to connect the dots is bothersome.
Your study sounds like homework, but I have someone in mind who is more interested in that stuff. I could give you a coin to flip for now if you want.
“If the Court isn’t going to hear a case, then it shouldn’t say anything about it without good reason. Or is that too simplistic a formulation for you? Or do you not agree? ”
It is very simplistic and I don’t agree. The Court only hears cases it thinks worthy. It would be a good thing, for the public and especially lawyers that don’t practice before the Court, to sometimes learn why cases aren’t granted cert. It might help quell all this bias and prejudice nonsense.
“Your experience might be dulling your sensitivity to prejudgment, but it is a concern, especially when there isn’t another court to complain to if you get railroaded. I agree that this discussion is important, and I would rather have it occur in the open, but your refusal to connect the dots is bothersome.”
My experience includes six cases in the Court, only one was criminal. No, prejudgment is not a concern; it’s a fallacy created by people that don’t know what they’re talking about.
Fallacy is a fighting word for me, but I know better than to pick one with a swamp-thing. I’d instead retreat to the position that avoiding even the appearance of bias has value because to get where you are takes time and effort and understanding that not many will achieve.
Isn’t it naive to think that all judges are these beacons of light and hope who selflessly decide cases only on their merits? Even if my experience tells me that’s how it works, I’m not ready to declare outright that there are no bad apples. You aren’t saying there are never non-law reasons for a decision, are you? You can’t be. Posner copped to it already. I’ve read a lot about Greylord too. Shit doesn’t shovel itself, and the worst part is the veneer of law can really make it all shine.
You have me feeling like I don’t know what I’m talking about, so I’m sorry in advance.
I came here to say this only to find out it had already been said.
But since you seem to have confused the kid, let me try putting it a little differently.
As lawyers in the English tradition, what we do is look at extant law, which consists of both written/codified law and judicial opinions. We then, like naive philosopher warriors who learned nothing from Wittgenstein, try to convince the opposition and court that our view of the extant law supports our position.
Now here’s the rub- if you view law merely as lawfare- simply the battle to get to what you want, then yes, Justices and Judges should be some sort of mysterious philosopher kings. They should betray nothing of themselves and their thoughts.
But if you view law as a sort of science that works towards truth- the truth of what the extant law means, its scope, its function- then you have nothing to worry about. The Justices can say whatever they like- its just more grist for the mill.
Skink and I think of law as working toward that truth- we believe in the whole “arc of history bending toward justice”. Within that framework we want more sharing of the opinions of judges, not some bizarro world where the Justices act like superhuman automatons.
I’m deeply moved by your camaraderie with Skink. Have you invited him to a sleep over where you can braid each other’s hair, paint each other’s nails and discuss how to bend the arc of the moral universe?
Shiiiit! Moral universe and hair braiding, WTF?!
You could have, at the very least, come up with an original lawyer joke esteeeemed one…
Tsk, tsk!
Hey Everybody! Pajama Party at Jay’s!
Jay–I have nearly no esoteric brain cells. Those I have are reserved for old black and white movies. I never reach England with law. I don’t understand what you said and I ain’t looking it up.
Scott–A pal of ours once said “STFU” to the Court on what was, maybe, the best blawg. Besides, I have little hair.
Skink,
My reference to the Court and “STFU” also got me into a nasty batch of trouble but not from the Court or any lower federal courts. To be honest, I sorta enjoyed it.
Take care, my friend.
RGK
Me too. More than you’ll ever know.
You spent your Fantasy Federal Judiciary League draft pick on Orin?
Interesting… did that come about during some sort of nightmare of yours where Orin and that Johnathan guy, from Chicago, were mud wrestling or something?
P.S. Perhaps the only question really remaining is how the Supremes will get away with corporate product placement advertising contracts when VanityFair comes knocking on a regular basis to do spreads on their chambers. Heck, I bet you could get a nice shot of SJ open on a laptop if your really opened yourself up and got in the “game”.
I got good odds for the pick.