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.