Tuesday, February 25, 2020
The Supreme Court of the United States is a court of discretionary review, meaning it has no obligation to take up a case for decision, but rather is vested with the discretion to decide when it will exercise its authority. It is commonly accepted wisdom that the denial of a request for such consideration (a petition for writ of certiorari) is thus a non-event. It does not mean that the Court approves of the decision, but rather simply that not enough justices on the Court (it takes four) considered the matter appropriate for review.
Indeed, Justice Frankfurter noted in his comments on the denial of certiorari in Maryland v. Baltimore Radio Show, Inc., that "[T]his Court has rigorously insisted that. . . a denial [of a petition for writ of certiorari] carries with no implication whatever regarding the Court's views on the merits of a case which it has declined to review." 338 U.S. 912, 919 (1950) (Frankfurter, J., respecting denial of certiorari).
However, if that is the case, why do the Justices on the Court so frequently issue opinions when a certiorari is denied? This question came to mind yesterday, when the Court issued, among its other orders, three opinions concurring or dissenting on denial of certiorari. A review of those opinions illustrates why the Justices are increasingly giving insight into "non-events."
First, Justice Sotomayor issued a "statement respecting the denial of certiorari" in Reed v. Texas, a case involving a murder conviction that has involved no less than nine state habeas petitions over more than twenty years. In commenting on the denial of certiorari, Justice Sotomayor notes that Texas law will require the state courts considering pending habeas relief to consider Reed's innocence on the merits for the first time, and that the denial of certiorari in no way implies anything about the high court's opinions on those pending actions. Sotomayor ends, however, by noting that, in her view, "there is no escaping the pall of uncertainty over Reed's conviction," and that she remains "hopeful that available state processes will take care to ensure full and fair consideration of Reed's innocence - and will not allow the most permanent of consequences to weigh on the Nation's conscience while Reed's conviction remains so mired in doubt." Reed v. Texas, 589 U.S. ___ (2020) (Sotomayor, J., respecting denial of certiorari).
Next, Justice Alito, joined by Justices Thomas and Gorsuch, issued a concurring opinion on the denial of certiorari in Patterson v. Walgreen Co. That case involved the meaning of Title VII's prohibition of employment discrimination "because of . . . religion." The Court requested briefing from the Solicitor General, and Justice Alito goes into detail as to which portions of the briefing he agrees with. Specifically, Justice Alito seems to lay out reasons why Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) should be reversed, using some of the factors commonly identified as being necessary to reverse prior precedent in his analysis. While Alito agrees that Patterson was the wrong vehicle to raise these issues, he gives a roadmap for the next case that is more appropriate. Patterson v. Walgreen Co., 589 U.S. ___ (2020) (Alito, J., concurring on denial of certiorari).
Finally, Justice Thomas issued an opinion dissenting from the denial of certiorari in Baldwin v. United States. This case involves Chevron deference, the general rule that courts must adopt an agency's interpretation of an ambiguous statute so long as that interpretation is "reasonable." Usually, this interpretation occurs prior to a court's ruling. In National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 982 (2005), Thomas authored an opinion holding that this deference even applies if a court has interpreted the statute before the agency, so long as the court has not also held that the statute is unambiguous.
Baldwin sought reconsideration of Brand X. Over his eleven-page analysis, Thomas sets out why he thinks Brand X should be revisited, noting that "it is never too late to surrender former views to a better considered position." His criticism of both Chevron and his opinion in Brand X includes an analysis of the proper separation of powers, the checking power of the Judiciary, the APA, and "accepted principles of statutory interpretation from the first century of the Republic." Baldwin v. United States, 589 U.S. ___ (2020) (Thomas, J., dissenting from denial of certiorari).
Each one of these opinions, while entirely non-binding, are remarkable. Justice Sotomayor issued a clear "I am watching you" signal to the lower courts on a conviction that she implies cannot, in good conscious, support a death penalty. Three justices laid out a roadmap for arguments to overturn a prior Supreme Court decision that is relied upon by numerous other decisions. And the author of a fairly recent decision invited petitions to overturn that case and its underpinnings in Chevron.
These denials of certiorari are not "non-events." Rather, they clarify the need to include these opinions in your research and analysis. In doing so, you may very well find a roadmap to your next successful petition, and any case that may eventually involve these issues.