Disclosing How the Justices Vote on Certiorari Petitions

Gerard N. Magliocca

The Supreme Court's lack of transparency is an issue that never dies.  Sometimes the complaint is that the Court does not televise oral arguments.  Sometimes people grumble that retired Justices keep their papers confidential for far too long or don't preserve them at all.  I would like to raise a different concern, which is that I think people are entitled to know how the Justices vote on each cert petition.

A Justice who votes to grant certiorari on a petition that is denied has the discretion to publish a dissent from that denial and disclose his or her vote.  Basically, this is done only when a Justice feels strongly that certiorari should have been granted but was not.  One could imagine a practice, though, where a Justice noted "dissenting without opinion" whenever a petition was denied.  The same could be true when a petition was granted, though it is rare for a Justice to write a dissent from a certiorari grant (indeed, I can't think of any recent cases in which this happened.)

There are a couple of benefits to this sort of disclosure.  First, litigants and attorneys might find it useful to know whether certain kinds of issues or petitions are drawing zero votes for certiorari as opposed to, say, three.  And they might like to know who is voting how so that they can shape the next petition to draw the votes of those who voted no the last time.  Second, in granted cases there would be an advantage to knowing the vote.  Take King v. Burwell as an example.  We are assuming that the four dissenters in NFIB v. Sebelius (and only those four) voted to grant.  Suppose, though, it turned out that Justice Breyer voted to grant, or that Justice Alito voted to deny.  That would change the way that people are thinking about the case going into oral argument.

What are the arguments against this sort of disclosure?  One thought is that the Court does not want to advertise its divisions, and many of the certiorari grants would look bad in that respect.  Another is that the rule that certiorari denials are not precedent would be tested (say in a federal habeas petition), if a litigant could say that two Justices or three wanted to hear the cert. petition on direct appeal.  I do not think that this is a substantial objection, but maybe I'm wrong about that.  A final thought is that the Justices simply do not want to be feel bound by their certiorari votes, which would tend to happen if they were known.

My tentative conclusion is that the benefits outweigh the costs, but I would be curious to hear what folks think or whether I'm missing something important.

UPDATE:  Will Baude has an op-ed in today's (Tuesday's) NYT that makes a broader argument along these lines that I agree with entirely.
Posted 2:59 PM by Gerard N. Magliocca [link]