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Tuesday, April 23, 2019

Improvident Certiorari Grants

Today the Supreme Court dismissed a recently argued case with a one-sentence order stating that the writ of certiorari was improvidently granted. This is the standard practice nowadays. It is worth noting, however, that the Supreme Court used to actually explain why the writ should not have been granted before stating that conclusion.  (You can find lots of examples through a simple Westlaw search). I wonder if the parties in such a case are owed an explanation, however brief, for the Court's change of heart.

Posted by Gerard Magliocca on April 23, 2019 at 10:03 PM | Permalink


But they still do explain DIGs at times, at least when they're about a petitioner's change in position post-grant, though that looks like the issue here and they didn't chastise the petitioner.

Posted by: Asher Steinberg | Apr 24, 2019 7:45:18 PM

Salem, how often does the Court DIG a case for "embarrassing" reasons? If they just don't feel like hearing the issue, I would think they just deny cert without explanation.

Posted by: Orin Kerr | Apr 24, 2019 4:32:31 PM

In my article with Rafael Gely, The Supreme Court and the DIG: An Empirical and Institutional Analysis, 2005 Wis. L. Rev. 1421, we argue that the Court should give explanations, if only briefly, for why it is digging a case.(We mention in a footnote why "digging" is preferred to "dug.")Part of it is what Orin said, to give guidance for future litigants, but also in effect to put limits on the Court itself. Our study showed that the Court (i.e., the majority or a concurring or dissenting Justice) was giving some kind of explanation in only about 1/2 of the digged cases. Not sure what the data would show on that point since 2005.

Posted by: Michael E. Solimine | Apr 24, 2019 11:41:09 AM

In poker, you need to protect your weaker hands. If you always raise your good hands, then a check tells your opponent you have nothing. So you will check some good hands, to prevent your opponent getting too strong a read on you.

As in poker, so with the Supreme Court. They want to be able to DIG without disclosing their reasons, when those reasons are embarrassing (e.g. a wish to "duck" a case). But if they explain their DIGs whenever they have reasons they are willing to admit, then when they DIG for no reason, they look extremely bad. By adopting a general policy of not explaining DIGs, they preserve their flexibility across the board.

Posted by: Salem | Apr 24, 2019 9:19:57 AM

Interesting indeed. But maybe, one may find certain explanation ( partly ) in those cases where,I quote from " Conservepedia " here:

Sometimes one of the questions presented can be dismissed as improvidently granted, without dismissing the entire case. This happened in City & Cnty. of San Francisco, Cal. v. Sheehan, 135 S. Ct. 702 (2014), where one of the questions was to consider the question whether Title II of the ADA applies "to an officer's on-the-street responses to reported disturbances or other similar incidents... prior to the officer's securing the scene and ensuring that there is no threat to human life," 135 S. Ct. 1765, 1773 (2015). The U.S. Supreme Court dismissed this question presented as improvidently granted because the parties and the United States as amicus curiae all agreed as to the answer to the question of whether 42 U.S.C. § 12132 applies to arrests. Id. at 1774. The Court then decided the second question presented, by holding "that the officers are entitled to qualified immunity because they did not violate any clearly established Fourth Amendment rights." 135 S. Ct. at 1769.

So, only one issue is not granted, while the entire other case, is on.I shall look further indeed.




Posted by: El roam | Apr 24, 2019 6:38:15 AM

Interesting question. They don't ordinarily offer parties an explanation of why they granted a case or denied cert; given that, I'm not sure why they would offer an explanation of why they first granted and then effectively denied a case. It might help future litigants understand the cert process, which is helpful. But I'm not sure how much that is a mystery to appellate lawyers.

Posted by: Orin Kerr | Apr 23, 2019 10:13:35 PM

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