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Monday, February 02, 2015

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.

Comments:

Perhaps the views of retired Justices on this subject might be helpful. I don't know if Justices Souter, O'Connor and Stevens would be willing to provide thoughts on this matter based upon their experiences. Transparency is great, but too much may blind - or obscure - what is really important. I'm for televising oral arguments. I'm for rules opening up to the public retired Justices' papers more quickly than at present. I'm for the Court increasing the number of cases it decides so that lower courts may benefit. (This may lead to more concise opinion writing from the Court's guidance) But the Cert procedure came about to prevent the Court with the ever increasing litigation appeals. Perhaps the procedure should be revisited so it may provide more justice. I assume Congress would have a role in this; but the experiences of retired Justices would be a good starting point.
 

I agree with Shag and I want say this is a great topic I hadn't considered, already well-laid out in a relatively-brief blog post. I look forward to hearing more about this process.
 

Judicial transparency, actually lack thereof, is discussed by William Baude in a NYTimes Op-Ed (re: orders of the Court) and by Adam Liptak's NYTimes Column (on unpublished opinions of Courts of Appeal), both appearing today. Also, Justice Kagan has expressed her druthers recently on cameras in the Court. Before this gets out of hand, perhaps there is a need for prioritizing judicial transparency issues.
 

I think Baude is on the right track in general; he was written about the range of outside of ordinary opinions the Roberts Courts have done in recent years. On that point, yes, it would be a good thing if they were more open about what they were doing there.

[There were various orders, at times with brief somewhat opaque comments, about abortion, voting, same sex marriage etc. this term alone. Baude also notes the rise of per curiams.]

OTOH, I don't really care about SCOTUS not publicly providing the votes for each cert. petition they handle. It can be interesting to know (as shown in various accounts like "The Brethren) but "entitled"? Eh.

I think it would matter to people and people will try to figure out if there is a message being sent by the vote. I think that might be counterproductive in the long run and lead to some misleading assumptions. There is after all, e.g., various reasons to take a case. This is especially the case if more than four vote for cert (the extras might not think much of it -- their votes are merely window dressing on some level)

Do we need to know the order of the votes too? After all, as seen in accounts at SCOTUSBlog, certain cases are held over -- this suggests there is some interest but not enough. So, would knowing who "really" was interested also be something we were "entitled" to know?

It's an interesting idea, but as a fan of more openness, that would be sort of far down there.
 

I'm all for more transparency, but I'm not sure this would accomplish anything useful. There are a lot of reasons why a given justice might vote against cert even if the issue was cert-worthy: there are complicating factual considerations that blur the cert-worthy issue, the Court is waiting on more developments from the lower courts, the record doesn't appear to address key points, etc. There could easily be a unanimous denial of cert in a case that most justices think was wrongly decided below, and where they think they should reach the issue (but in some other case); that sort of result, if disclosed, might discourage other litigants from filing a cert petition on that issue. And misreporting about a denial of cert as indicating the Court's view of the merits is very common and might affect how the justices vote (i.e., the justices might feel compelled to cast multiple votes for, or even grant cert on, an issue that would not otherwise get cert, just so they don't generate a headline "Supreme Court Unanimously Rejects Petition"). So I think the benefits here are pretty mixed at best.
 

Advocates coming before the Court would definitely benefit from knowing how the individual justices voted granted cert on their case. They would benefit even more if the could listen in on deliberations over cases during conferences. However, the desire of advocates for intelligence to make tailored pitches to individual justices is not a reason for the Court to provide it.
 

Advocates, as well as legal academics, might also misconstrue disclosures of cert voting by Justices. Interpretation of such disclosures might engender mere guessing what lurks in the minds of Justices. All so-called "intelligence" is subject to interpretation, whether such "intelligence" is good or bad, and sometimes the interpretation is good and sometimes it is bad.
 

It's nice to have something where there is some cross-ideological concurrence.
 

Recording votes on matters other than the final opinion distracts from the proper inquiry - what does the law require the answer to the question posed to be. That is different from how do I get five votes. Moreover, all votes before the vote on the opinion necessarily should be tentative votes that change as briefing, argument, research, and opinion writing occur. To focus on why Justice X changed her position could inhibit such open minded consideration of the questions presented. No one is entitled to know anything other than the final opinion. Anything that inhibits an open minded exploration of the issues involved prior to the final opinion should be discouraged.
 

Recording votes on matters other than the final opinion distracts from the proper inquiry - what does the law require the answer to the question posed to be. That is different from how do I get five votes. Moreover, all votes before the vote on the opinion necessarily should be tentative votes that change as briefing, argument, research, and opinion writing occur. To focus on why Justice X changed her position could inhibit such open minded consideration of the questions presented. No one is entitled to know anything other than the final opinion. Anything that inhibits an open minded exploration of the issues involved prior to the final opinion should be discouraged.
 

What is clear is that the Justices on the Court do not call balls and strikes in real time, nor do they have the benefit (or detriment) of instant replay. The course of appeals is deliberative, taking its time to reach a decision that may not be unanimous. The parties submits briefs. Add to this the proliferation in recent years of Amici briefs. Then there is heard the political punditry, legal academics, all with the warp speed of the Internet, leading to the oral arguments, followed again by comments of the political punditry, legal academics, with the aid of the Internet, leading to the crescendo of the announcement of the Court's decision, which again leads to the political punditry, legal academics, again with the warp speed of the Internet, commenting on the decision and what it means. Does the public need more details on the deliberative process, assuming it could handle such details? We have political dysfunction with the elected branches. And the judiciary may contribute to this dysfunction. How would requiring disclosure of such details cure all this dysfunction? Might dysfunction actually be made worse (if that's possible)?
 

What is the practice of other high-level appellate jurisdictions? The rules of procedure of the UK Supreme Court (né House of Lords) do not mention a record of votes on decisions giving or refusing leave to appeal. I suspect this discretion is more the rule than the exception.

All supreme courts have to deal with a huge number of applications, only a few of which can be taken up. Publishing votes would slow down the rather brutal weeding, giving less time for deliberation on the cases retained.

I also suspect that quite a few such courts, struggling under a caseload made unmanageable by to easy access (like the ECHR and the French Cour de Cassation), envy SCOTUS' right to control its caseload.
 

It would be a shame to "waste" this thread so early merely because there seem to be no disagreements (subject, of course, to translation and analysis of the comments of SPAM-I-CAN) among commenters on Gerard's post. So here goes:

1. Over at Concurring Opinions Gerard's recent post "The Arizona Redistricting Case" starts off with this:

"One disadvantage of blogging is that it occurs in real time, which can leave behind a string of contradictory posts when you change your mind about a complex issue. (Sometimes I feel like we need a blogging version of shepardizing.) " Gerard confesses to some of his flip-flopping on this case. While that case is interesting, my focus is on the parenthetical reference to "a blogging version of shepardizing. Imagine if such a feature were available. In anticipation of a post - or even a comment - one could test for his/her own potential "flip flops" and perhaps put them in context (or abandon the post or comment). What do commenters think about this?

2. The Sunday Book Review Section of the NYTimes (2/8/15) includes a review by Drew Gilpin Faust of Richard Brookhiser's "Founders' Son: A Life of Abraham Lincoln." This is a polite but critical review of the book. The title brought to mind Gerard's recent book "American Founding Son - John Bingham and the Invention of the Fourteenth Amendment." Gerard has offered an explanation of his title as being suggested by the publisher. As to Brookhiser, I think he may have picked his title personally to reflect his revisionism, considering his views on the Founders regarding slavery.
 

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1. Blogging provides a chance to muse aloud and not being constrained by past comments probably is useful.

2. The review (Jill Lepore has another essay on Lincoln) has implications to the originalism debate. Lincoln tied himself to the Framers but so did others.

Trying to find "one" answer there was somewhat forcing the issue. The Framers could guide, but Lincoln et. al. were ultimately on their own. As are we.

Dorf on Law today (2/9) has a post dubious about an "originalist" stance on SSM, the tone of the piece akin to GM on this topic probably. I sort of resist, somewhat half-heartedly, that sentiment.
 

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