Friday, September 25, 2015

Making Votes to Grant Review Public

Mark Tushnet

Jeffrey Fisher argues in the New York Times today that the Supreme Court should make public the votes to grant or deny review. The aim is to provide greater information to the public, so that we might learn whether, for example, specific justices have patterns in their votes to grant or deny review. I've heard this idea bruited about, but it ignores dynamic effects.

The first thing that would happen, I'm sure, is that the announced votes in all granted cases would be unanimous. From a justice's perspective, what's the point of saying, "Four of you are wrong in forcing me to hear this case on the merits"? (Felix Frankfurter occasionally did that in workers' compensation cases, but he was a jerk, and by the time he started doing it his colleagues knew he was.) Time enough to dis them after the argument. The mechanism here would be that the vote on granting review would be treated as a straw vote the first time around, with the "official" vote taken afterwards.

Because we do sometimes see dissents from denials of review, the effects of Fisher's proposed rule on denials might be a bit different, but not much, I think. The same "straw vote" mechanism would work, except that the judges who wanted to grant review would have to decide not, as is the current practice, whether to note their dissent from denial, but rather whether to "change" their vote when the second round of voting occurs. On the margin, we might see a few more dissents from denial of review than we see now, but my guess is that the effect would be small.

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