Typically Quiet, Justices Open Up About Denials

, The Litigation Daily

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Tony Mauro is Supreme Court correspondent for The National Law Journal, an American Lawyer sibling publication.

U.S. Supreme Court justices have made it dramatically clear this month that they don't only speak through formal decisions, instead using a range of other vehicles to influence the court's agenda and telegraph their views to lower court judges, practitioners and to each other.

During November the court handed down only one signed decision in an argued case. But individual justices issued seven different opinions about cases that the court did not grant. Justices issued only nine such nondecision opinions during the entire 2012-2013 term that ended in June.

Two of the latest series of opinions were comments for and against pending stay applications in a Texas abortion case. Three were dissents from the denial of review or certiorari, explaining why individual justices would have taken up the case. And two were labeled opinions "respecting the denial" of review, in which justices agreed the cases should have been rejected — but suggesting that the issue involved needs to be resolved soon. In all of these circumstances, the court normally acts without any justice making a peep.

What is behind this flurry of nondecision opinions? Some view it as a new effort by justices to guide advocates on how to shape future cases in a way that is more likely to win review. "These separate opinions and dissents serve a valid purpose, particularly in an era when the number of grants is at an historical low point," said Mayer Brown partner Stephen Shapiro, a longtime student of high court procedures. "They send valuable signals about the court's thinking and tee up issues for future review."

Others see a more strategic motive that goes against the traditional notion that the court is passive when it comes to setting its agenda, victims of the random nature of the cases that come in. Some of November's opinions imply that even though a particular case was denied review, the court is interested in the underlying issue — and wants to see it back on the docket soon. Yale Law School scholar Linda Greenhouse wrote in The New York Times that one of this month's opinions amounted to Chief Justice John Roberts Jr. describing a problem and inviting lawyers to "bring me a case" to solve it.

CONSOLATION PRIZE

Greenhouse was referring to Marek v. Lane, which took aim at a growing trend in class actions — so called "cy pres" settlements that do not go directly to injured plaintiffs, but instead go to charities or other third parties because of the difficulty of finding class members. The court on Nov. 4 denied review without comment. Roberts wrote a separate opinion agreeing that it should have been denied for technical reasons. But he went on to list his "fundamental concerns" about these settlements and concluded that "in a suitable case," the court could tackle those issues in the future.

Theodore Frank, founder of the Center for Class Action Fairness, said he would have preferred the court take the case, but the statement by Roberts was a good consolation prize. "He was sending signals to practitioners that this is what the court wants to see in a cert petition," Frank said. "It's perfectly reasonable for the court to say, 'This is what we are looking at, and this is what we are not looking at.' "

Martin v. Blessing, a case the court rejected on Nov. 18, challenged an unusual order by New York U.S. District Judge Harold Baer Jr. requiring that the legal team in a pending class action reflect the racial and gender composition of the class. In a separate opinion, Justice Samuel Alito Jr. said he was "hard pressed to see any grounds on which Judge Baer's practice can be defended." If the practice continues and the U.S. Court of Appeals for the Second Circuit does not deal with it, Alito warned, "future review may be warranted."

Class action critic Frank was involved in that case, too. "He's saying, 'I don't want to see this kind of order again.' Surely someone is going to get the message. I hope he will," Frank said. Frank said he feels like "the Armando Galarraga of certiorari," a reference to the Texas Rangers pitcher whose perfect game in 2010 was spoiled by a blown call in the ninth inning.

The other mini-opinions sent messages, too. On Nov. 18, the court denied Woodward v. Alabama, a challenge to the Alabama law that allows judges to impose the death penalty even after a jury rejects it. Justice Sonia Sotomayor, joined by Justice Stephen Breyer, objected — filing what amounted to a 17-page white paper detailing her "deep concerns" about the practice.The seven opinions spanned 41 pages — effort that could have gone toward deciding cases. That might have been the objection raised by retired Justice John Paul Stevens, a critic of such writings. "They are totally unnecessary," Stevens wrote in a 1978 case. "They are examples of the purest form of dicta, since they have even less legal significance than the orders of the entire Court which … have no precedential significance at all."

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