Certiorari Studies?

Thank you Dave for the warm welcome! I’m looking forward to participating in the discussion here at Concurring Opinions this month.

I wanted to begin my guest blogging stint here by opening a dialog on an issue that has been dominating much of my casual musings lately, which is the value (or lack thereof) of the study of certiorari review. This question has become a focus of my thinking largely because of responses I have received to a recent work in progress, Constitutional Colorblindness and the Family (in which I discuss denials of certiorari review in developing a historical account of the Supreme Court’s approach to contemporary uses of race in family law). I don’t want to focus too much here on that specific project, but instead on the bigger question of whether and how the study of certiorari review can be useful.

There seems to be relatively little controversy that the study of certiorari review on an institutional level—if done properly—can be a valuable scholarly enterprise. (Although, as pointed out by this recent book chapter addressing comparative constitutionalism, even at an institutional level, the study of certiorari review is sometimes neglected). Thus, the study of how, on a macro level, the Court (or internationally, courts) make use of their certiorari review powers, and how that relates to their institutional legitimacy, appears to dominate scholarly discussions of certiorari review.

But what about the study of certiorari review in the context of specific subject matters? For example, where the Court consistently, over a long period of time, declines to hear cases that deviate from its putative legal rule, should we view that as salient to its substantive legal commitments in that area?  What about where it declines to hear high profile and politically controversial cases in a context where failing to intervene is, rightly or wrongly, predictably understood as endorsement?

Here, it seems to me, that the answer should be a cautious—and contextually contingent—yes. On the ground, denials of certiorari review can have the practical effect of standing in for fully articulated law. To the extent that the Court’s denials of certiorari review signal to the lower courts their tacit endorsement of a doctrinal practice—or simply permit it to continue over a long period of time—that dynamic is an important feature of what the law is, worthy of the type of deeper study that published Supreme Court decisions generate.

To be clear, I am not contending that we should presume that the mere fact of a denial of certiorari review—uncontextualized and unstudied—should be afforded any substantive significance (either in understanding the Justices’ motives, much less in determining what the law is). But on the other hand, we increasingly have at our disposal a set of tools that allows the type of systematic study that can provide context to certiorari denials—and that, in some cases, can lead to reasonable inferences about meaning. Thus, our enhanced ability in the era of electronic databases to systematically trace patterns of denials of certiorari review in a particular subject area; the comparatively contemporary availability of access to the Justices’ papers; the much wider availability of the parties’ briefing at the petition stage; all seem to me to provide us with a set of tools from which to derive potentially meaningful insights.

I leave you with that set of thoughts, and welcome all responses. I will pick up this issue in an upcoming post by talking a bit about a particularly helpful tool for those who may be developing research questions in this area, Lee Epstein, Jeffrey Segal and Harold Spaeth’s Digital Archive of the Papers of Justice Blackmun.

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6 Responses

  1. Orin Kerr says:

    I tend to disagree. The Court denies cert in 99% of its cases, and the #1 reason it grants cert is to resolve substantial lower court disagreement. If a lower court misapplies the Supreme Court’s test, that is considered a reason for the Court to deny cert, not a reason to grant it; in the argot of Supreme Court practice, the petition only calls for “error correction” and is therefore not cert-worthy. See Sup. Ct. R. 10 (“A petition for a writ of certiorari is rarely granted when the asserted error consists . . misapplication of a properly stated rule of law.”) Given that the Court does not disclose why cert was denied, who voted for cert, or even the number of votes a petition received, the fact of a denial doesn’t tell you anything about the Justices’ view of the law. I agree that there’s a body of data there; it’s just that the body of data doesn’t tell you what you would want to know. Or so it seems to me.

    By the way, for those interested in the cert process, Perry’s book “Deciding to Decide” is excellent. http://www.amazon.com/Deciding-Decide-Agenda-Setting-Supreme/dp/0674194438

  2. Katie Eyer says:

    Hi Orin,

    Thanks for the response. I’m not sure how much we disagree. I agree that in an individual case, without any further information, I wouldn’t draw any information from a denial of certiorari review, even if there’s a clear deviation from the Court’s precedents, for many of the reasons you discuss. On the other hand, in many fairly contemporary contexts you can obtain much more information than that, including access to what were the internal votes (available in most circumstances for cases up through the mid-1990s through the Justices’ papers), as well as in many circumstances further substantive internal documents (through the same mechanism). Where you have a larger set of cases to work with (not just an isolated denial of certiorari), that may add up to a meaningful picture (although I would by no means claim that it always does).

    I also think that the mere fact that the Court consistently denies certiorari review in a particular area can be—whatever the Court’s reasons—significant. If you have many decades long time frame within which the Court permits a different doctrinal rule (or a doctrinal exception) to persist in the lower courts that effectively becomes the law (in every meaningful sense I can think of), whether or not it deviates from the Court’s formal doctrine.

    All of these are things that I think warrant more scholarly scrutiny than they currently get—which is not to say one would always be able to draw meaningful conclusions from the information available.

  3. FPD says:

    I wonder if the Court’s treatment of Almendarez-Torres v. United States would be an interesting case study. A year after it was issued, in Apprendi v. New Jersey, it was called into question by Justice Thomas, who supplied the fifth vote in the case. At that point, it was widely expected that the Could would overrule Almendarez-Torres. Since then, there has been quite literally thousands of cert petitions raising the issue of whether Almendarez-Torres should be overruled. The Court has denied all of them. At some point, the case became settled law, and it is now widely believed that the Court will not overrule the decision.

  4. Orin Kerr says:

    FPD, the Perry book I linked to above has some good stuff on “repeat denies” — issues that come up frequently, and for which the existing Justices don’t have four votes to grant, so the cases are always denied.

  5. Katie Eyer says:

    FPD, yes, that’s exactly the type of situation I had in mind. Unfortunately, the time frame is after when we have the latest access to internal records at this point through the Justices’ papers (1994), but there might be other interesting ways of getting at what’s going on (I don’t know enough about the subject area myself to know, but a quick search shows that there’s been at least one explicit dissent from a denial of cert on this issue, which might be a place to start). Certainly it presents the type of interesting puzzle that seems worthy of further inquiry if only for how (if at all) the conflict in signals has effected the lower courts’ on the ground approach to the law.

  6. Brad Bogan says:

    As recently as 2010, the Court called for a response from the SG to two cert petitions asking the Court to overrule Almendarez-Torres. (http://www.scotusblog.com/2011/01/re-list-watch-will-the-court-reconsider-almendarez-torres/) The petitions were relisted three times before being denied without comment from any of the justices.

    As for how the uncertain status of Almendarez-Torres is playing out on the ground, it’s a dicey subject in the Fifth Circuit. In United States v. Pineda-Arrellano, 492 F.3d 624 (2007), two judges opined that the issue is “fully foreclosed from further debate,” and warned that “[i]t would be prudent for appellants and their counsel not to damage their credibility with this court by asserting non-debatable arguments.” The third judge on the panel wrote a lengthy concurring opinion “emphatically” disagreeing with the majority’s view of the matter as “a dictum that exceeds the authority of this court and conflicts with decisions of the Supreme Court.”