Monday, October 04, 2004

Denial of Cert

Kevin Drum says, "The Supreme Court decided today that the Do-Not-Call list is constitutional. Hurrah!"

No, no, no! The Supreme Court didn't decide anything. It merely denied cert. as to a case upholding the "do-not-call" list. In fact, what the Supreme Court did is decide not to decide anything.

A denial of cert. does not mean that the Supreme Court approves of the result below. Indeed, such a rule would be ridiculously unworkable, given that the Supreme Court only grants cert in about 1% of all cases where a petition is filed. If a denial of cert meant that they positively approved of the result below, they would have to (1) grant cert in many times more cases, and (2) give immensely more scrutiny to the several thousand cases where cert would eventually be denied. They just don't have time to do that kind of work.

Two of the best explanations for this:
If we were to sanction a rule directing the District Courts to give any effect to a denial of certiorari, let alone the effect of res judicata which is the practical result of the position of the Fourth Circuit, we would be ignoring actualities recognized ever since certiorari jurisdiction was conferred upon this Court more than sixty years ago.

From its inception certiorari jurisdiction has been treated for what it is in view of the function that it was devised to serve. It was designed to permit this Court to keep within manageable proportions, having due regard to the conditions indispensable for the wise adjudication of those cases which must be decided here, the business that is allowed to come before us. By successive measures Congress enlarged the discretionary jurisdiction of the Court until, by the Judiciary Act of 1925, supplemented by the Court's own invention of the jurisdictional statement in relation to the narrow scope of residual appeals, the Court became complete master of its docket. The governing consideration was authority in the Court to decline to review decisions which, right or wrong, do not present questions of sufficient gravity. Whatever the source of these questions, whether the common law, statutes or the Constitution, other cases of obvious gravity are more than enough to absorb the Court's time and thought. Cf. Hamilton Shoe Co. v. Wolf Brothers, 240 U.S. 251, 258.

It is within the experience of every member of this Court that we do not have to, and frequently do not, reach the merits of a case to decide that it is not of sufficient importance to warrant review here. Thirty years ago the Court rather sharply reminded the Bar not to draw strength for lower court opinions from the fact that they were left unreviewed here. "The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times." United States v. Carver, 260 U.S. 482, 490. We have repeatedly indicated that a denial of certiorari means only that, for one reason or another which is seldom disclosed, and not infrequently for conflicting reasons which may have nothing to do with the merits and certainly may have nothing to do with any view of the merits taken by a majority of the Court, there were not four members of the Court who thought the case should be heard.

Brown v. Allen, 344 U.S. 443, 490-492 (1953)
And Justice Frankfurter wrote thus:
This Court now declines to review the decision of the Maryland Court of Appeals. The sole significance of such denial of a petition for writ of certiorari need not be elucidated to those versed in the Court's procedures. It simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter "of sound judicial discretion." Rule 38, paragraph 5. A variety of considerations underlie denials of the writ, and as to the same petition different reasons may lead different Justices to the same result. This is especially true of petitions for review on writ of certiorari to a State court. Narrowly technical reasons may lead to denials. Review may be sought too late; the judgment of the lower court may not be final; it may not be the judgment of a State court of last resort; the decision may be supportable as a matter of State law, not subject to review by this Court, even though the State court also passed on issues of federal law. A decision may satisfy all these technical requirements and yet may commend itself for review to fewer than four members of the Court. Pertinent considerations of judicial policy here come into play. A case may raise an important question but the record may be cloudy. It may be desirable to have different aspects of an issue further illumined by the lower courts. Wise adjudication has its own time for ripening.

* * *

Inasmuch, therefore, as all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court's views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated.

The one thing that can be said with certainty about the Court's denial of Maryland's petition in this case is that it does not remotely imply approval or disapproval of what was said by the Court of Appeals of Maryland.

Maryland v. Baltimore Radio Show, 338 U.S. 912, 917-919 (1950).

6 Comments:

Anonymous Anonymous said...

While it's true that, technically, denial of cert means nothing more than that they didn't take the case, I don't think it's fair to say that it NEVER means anything. For instance, the Supreme court has, for over sixty years, refused certiori to every last case where somebody tried to raise the 2nd amendment as an issue. The result being an accumulation of lower court precidents hostile to that amendment in every circuit. Tell me seriously that that's not a way of killing the 2nd amendment without getting their fingerprints on the murder weapon...

5:20 AM  
Blogger Plainsman said...

Not every circuit. The Fifth Circuit recognized a couple of years back in United States v. Emerson that the Second Amendment confers an individual right enforceable against the state. (They didn't let the other shoe drop, as they should have, and hold that federal or state laws impinging on the right to possess handheld firearms must satisfy strict scrutiny, just like any other enumerated fundamental right under the post-Carolene Products regime. But it's a start.)

Anyway, the best example of how a cert. denial doesn't mean the Court agrees with the holding below is Hopwood v. Texas (1996), the Fifth Circuit case that held that race preferences based on "diversity" in university admissions violated the Fourteenth Amendment. The Supreme Court denied cert. in Hopwood, creating much speculation, hope, and consternation ... but then it took up the same issue seven years later in Grutter v. Bollinger (2003), and reached a conclusion opposite to Hopwood's.

That illustrates the point pretty sharply.

2:36 PM  
Anonymous Anonymous said...

As a practical matter, no, the Fifth circuit is NOT in conflict with the others. The rest of the circuits declare that it's not a right, the Fifth calls it a right, and then proceeds to analyze Emerson's situation *as if it were a privilege*, and rule against him on that basis. The split is purely rhetorical.

A right that can be stripped from you by a bit of legal boilerplate, without any finding of guilt, and without you even having to be TOLD that it was taken away in order to be punished for continuing to exercise it, is not a right worthy of the name.

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