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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