Do the Justices Have Permission to Deny Review?

What legal principles govern the Supreme Court’s decision to grant review? 

This basic question is surprisingly hard to answer. Supreme Court Rule 10 states, “Review on a writ of certiorari is not a matter of right, but of judicial discretion” and then gives a series of factors that “indicate the character of the reasons the Court considers.” Justice Barrett recently drew attention to this issue. In Does v. Mills, the Court denied a request for an injunction regarding a state covid-19 vaccine mandate. Joined by Justice Kavanaugh, Barrett concurred because the case called for a “discretionary judgment about whether the Court should grant review in the case.” How should we understand this “discretionary” practice?

One option is to endorse an amorphous standard, such as “important cases” or “cases where the Court can do a lot of good.” This approach is highly merits-dependent, in the sense that what qualifies as “important” or worth the Court’s time will largely turn on one’s views of the law. A Court that embraced this approach would therefore tend to unsettle the existing legal landscape and reshape it according to the justices’ current legal views. 

Another option is to adopt strict rules, such as “grant only cases that pose a circuit split and cases where the United States has sought certiorari.” This approach will be relatively merits-neutral, in the sense that the criteria identified are independent of one’s own view of the law. But this option affords other actors control over the Court’s docket and would inevitably leave out extraordinary situations where certiorari would seem warranted. 

A third option is a rule of pure discretion. The justices could either grant or deny certiorari for any reason or no reason at all. As compared with the merits-sensitive standard and the merits-neutral rule, pure discretion would allow the Court to get the best of both worlds: it could leave most law undisturbed while acting in extraordinary cases. But unbridled discretion of course invites worries of arbitrariness, bias, and partisanship.     

Faced with this imperfect menu of options, a natural thought is, “Why choose just one?” The justices are free to mix and match decisional principles so as to create a hybrid regime. And, in my view, the Court has done just that.

First, the Court has established a standard for granting certiorari, focusing on whether a case poses an “important” question (Supreme Court Rule 10). This principle aims to ensure that the justices alter the law only when they have identified a legitimate reason for doing so. The upshot is a degree of accountability, both to the observing public and to themselves.

Further, there is a permission to deny certiorari. That is, the justices are generally entitled vote for inaction, leaving the law where it is. This permission is asymmetric, and unlike pure discretion, because it applies only to denials of relief. In essence, the permission encourages the Court to err on the side of caution by ensuring that inaction is readily available. 

Finally, there is a presumption, even a mandate, in favor of review in certain frequently arising contexts, such as well-presented circuit splits or invalidations of federal statutes. These rule-like precepts qualify the permission to deny, foster predictability in the mine-run of cases, and establish baseline practices that can help guide the Court’s discretionary judgment. 

To my mind, the hybrid system just described is preferable to any one of the three norm types I described earlier (standard, rule, or discretion). Moreover, a hybrid system of some sort is probably the only decisional structure that can realistically be achieved, given the cross-cutting imperatives and views involved. Even functionalist justices want some determinacy and even formalist justices need an escape hatch every now and then.

This isn’t to say that the Court has already adopted and calibrated the perfect certiorari system. And we might want to embellish the account above, such as by adding a few “anti-permissions,” or considerations (such as invidious prejudice) that defeat an otherwise available permission. Still, recognizing the appeal and practical need for diverse norms is a critical first step to diagnosing any defects in the existing regime.

Similar hybrid systems can arise in other contexts, with one bearing special mention: stare decisis. Perhaps, as I have elsewhere suggested, stare decisis at the Court does or should operate not as a standard, rule, or principle of discretion, but rather as a mash up of all three. Consider the following simple schema: first, a standard for overruling; second, a permission to abide by precedent and so (as in the certiorari context) do no harm; and, finally, a mandate in favor of preserving statutory precedents.  

In other words, the certiorari process can be viewed, not as an exceptional opportunity for discretion, but rather as a miniature version of overall Court decision-making.

Update: There are a few more thoughts and comments over at Prawfs.

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