Over on Balkinization, I wrote a post suggesting that the Justices adopt a practice of publicly noting the votes on each certiorari petition. Since then, I’ve done some research that adds some context to that issue.
It appears that no Justice publicly dissented from a certiorari decision until 1950. Justice Frankfurter was the first to do so, and he argued that noting dissents from every denial would be unwise because that would not convey any useful information. In any given case, there could be many reasons for refusing to grant certiorari, thus doing so without an explanation would not tell you much, if anything. In 1976, Justice Stevens argued (in what was in effect a concurrence to a cert denial), that noting cert dissents was a bad idea because it would breach the confidentiality of those discussions and thus hurt their quality.
I’m not persuaded by either of these explanations. Sure a vote for or against certiorari (without more) is ambiguous, but does it really tell us nothing helpful? And would the Justices really discuss the petitions differently if the votes were disclosed? Now they might vote differently, but I’m not sure that the way they vote now is better in any meaningful way.
Now it is true that disclosure of this information may not be as high a priority as, say, getting oral arguments televised. Fair enough. But I still think (in a tentative way) that disclosure of certiorari votes would be a better practice.