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Thursday, November 11, 2021

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.

Posted by Richard M. Re on November 11, 2021 at 07:22 PM | Permalink


Richard, interesting. If I understand you correctly, you see "law" emerging from common practice about how to exercise discretion. If I understand you correctly, if 8 Justices exercise discretion one way, and 1 exercises it another way, the 1 is "violating the law" in a certain sense -- unless the 1 can persuade some number of others to exercise discretion in the same way as he does, at which point maybe the ones who used to be following the law are now violating the law because they're in the minority as to how they exercise their discretion.

If I'm understanding your take correctly, I disagree. I see law as something binding, not just something common. Most people might like Taylor Swift, and I might like opera instead, but that doesn't mean I am breaking the law by liking opera; it's just different ways of going about the discretionary question of what music you like or whether you like music at all.

You ask: "Could you say a bit more about why you think that cert votes -- unlike, say, votes in Fourth Amendment cases -- invite the response, "Well, it's just in their discretion"? Maybe it's just that you think the only norm in the cert context is one of pure discretion?"

I think there are two reasons. First, Congress has made it discretionary as a matter of law in the Judiciary Act of 1925. And second, the Supreme Court's own Rule 10 expressly says it is discretionary: "Review on a writ of certiorari is not a matter of right, but of judicial discretion." Yes, the Justices listed a few examples of "the character of the reasons" that it might potentially use, although its Rule emphasizes that those considerations are "neither controlling nor fully measuring the Court's discretion."

Posted by: Orin Kerr | Nov 13, 2021 7:24:30 PM

Good Morning, Professor Re and Professor Kerr,

“If the law fails either of those tests, it may yet survive but the State must satisfy strict scrutiny. To do that, the State must prove its law serves a compelling interest and employs the least restrictive means available for doing so.”

I suppose one can argue that given the fact that this “vaccine” does not provide one with either immunity or stop the spread of disease, a mandate would be unlawful for it violates both the First Amendment and Principle Of Proportionality Of The Eighth Amendment Of The Constitution Of The United States Of America, while failing to demonstrate the law serves a compelling interest or employs the least restrictive means or for that matter, the safest means available to do so.

I, for one, cannot say I am surprised that Covid 19 has been used by the atheist materialist overpopulation alarmist globalist, to overturn the Rule of Law, and our founding Judeo-Christian principles, but I am both surprised and deeply concerned that those who believe in our founding Judeo-Christian principles, and believe in those who made huge sacrifices to defend and uphold these principles, have demonstrated the least resistance and in fact, do not seem to possess enough desire to, “restore the basic rule of Law and Bill of Rights - compatible principles”.

Woe to us, if we do not end this now, and put our founding Judeo-Christian Principles, front and center.


Posted by: Nancy | Nov 13, 2021 11:00:11 AM

Orin: I’m grateful that you’re keeping the thread and discussion going this long! I like this hypo a lot. Let’s assume my hybrid norm was the law at the time White was voting on cert differently from his colleagues.

One possibility is that he agreed on the norm in principle but applied it differently. Maybe he saw more things as relevantly “important” under the standard to grant or saw more cases as “well-presented” for purposes of the mandatory rule to grant. If so, this would be the kind of legal disagreement that is pervasive at the court. One justice thinks a statute or precedent (etc) applies in way X and another in way Not-X. Each one thinks the other is making a legal error, but it’s probably good faith or reasonable disagreement.

At some point though the differences in application blur into rejection of the norm itself. We might imagine that White votes to grant every FERC case and only FERC cases. At that point criticism of White might hit a different register. He would be more of a law breaker or dissident. Now, because the court is so small and justices serve so long, White might eventually unsettle the norm he is transgressing, especially if his behavior is attractive on non-legal grounds. Until then, though, I do think it would be fair to accuse him (in this hypo) of violating law (whether sanctionable in any way is a separate question).

If I could turn this back to you a little bit: could you say a bit more about why you think that cert votes -- unlike, say, votes in Fourth Amendment cases -- invite the response, "Well, it's just in their discretion"? Maybe it's just that you think the only norm in the cert context is one of pure discretion?

Posted by: Richard Re | Nov 13, 2021 8:54:18 AM

Richard, totally understand if this thread is dead, but let me ask a follow up in case you're interested: What do you do with a Justice who doesn't follow this norm? I remember hearing that Justice White voted to grant cert very frequently. As I recall things, Justice White thought it was silly that the Court heard so few cases, so he voted to grant at a very high rate. Justice White was out of step with how most of the Justices approached, but I tend to think that was perfectly fine: He was just doing what he wanted, which was within his discretion, even if it was different from what the other Justices wanted. Do you look at that differently, or think Justice White was violating the law in some sense.?

Posted by: Orin Kerr | Nov 13, 2021 2:58:17 AM

Do the Justices Have Permission to Deny Review?”

One would think when it comes to judging the merits of a vaccine in order to determine whether or not a vaccine mandate is warranted or not, or legal or not, the answer would be the Justices have a duty to review.

First, one would have to determine what qualifies as a vaccine, and what the efficacy of that vaccine is based upon scientific and medical facts, From The CDC Website:

“Vaccine: Listen
media icon
A suspension of live (usually attenuated) or inactivated microorganisms (e.g. bacteria or viruses) or fractions thereof administered to induce immunity and prevent infectious diseases and their sequelae. Some vaccines contain highly defined antigens (e.g., the polysaccharide of Haemophilus influenzae type b or the surface antigen of hepatitis B); others have antigens that are complex or incompletely defined (e.g. Bordetella pertussis antigens or live attenuated viruses).”

-H/T Dr. Mercola

Next, are these vaccines ethical? Do they in anyway violate Religious Liberty, or place the value of one life over another?

It is important to note, some susceptible persons may be exposed to grave danger through repeated vaccination:



Inhibits the Production of Proinflammatory Cytokines




“The OSHA statute permits the agency to issue an “emergency temporary standard” if the agency determines that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful,” and that such a standard is “necessary to protect employees from such danger.” H/T https://www.vox.com/22770305/biden-vaccine-mandate-workplace-osha-supreme-court

I am Praying that this traditional vaccine will prove to be the standard for Covid 19:


And from what we learned in this crisis about the relationship between furin, hepcidin, and iron regulation, we will be able to treat disease, while affirming the self-evident Truth, that can be known through both Faith and reason, that it is never necessary to destroy a human life, to save a human life, and that at the End of The Day, it is possible to have both Liberty and a Happy Death.

“Behold The Cross, Our Only Hope”.

Posted by: Nancy | Nov 12, 2021 11:41:14 AM

Thanks again, Orin. I see where you’re coming from here. You’re implicating a deep debate about what qualifies as law. I would agree that self-imposed or self-sustaining norms are different from other types of norms, such as those vigorously enforced by an outside party. And both of those things are different from an absence of relevant norms. I like what I take to be your suggestion in the last message that there is a spectrum here with different kinds of law or practice falling at different points. One important feature that might make something fall on the “law” side of the line is whether actors feel internally that there is a norm applicable to their conduct. In that respect, court precedents in general, stare decides, the rule of four, Rule 10, and the norms I am identifying might all be more like (a) or about the bounds of discretion than (b) or how admitted discretion happens to be used at any moment. Put more briefly, if there is a relevant norm, even one the Court has created for itself, then it isn’t quite true that the Court can “do what it wants.”

Posted by: Richard Re | Nov 12, 2021 8:37:22 AM

Thanks, Richard. Let me follow up on one thing, though. You write: "I think it’s possible that legal principles here arise from a combination of Rule 10, statements in precedential opinions about cert discretion, and customary practice."

But aren't those legal principles just up to the Justices themselves, acting in their discretion? As I understand things, Rule 10 was enacted under the Rules Enabling Act, so it's basically the Justices having the power to set their own rules. And they can interpret the Rule however they want, or change it, or do pretty much whatever they want. True, as a matter of norms, the Justices on the Court at any time might have a rough consensus on how to exercise that discretion. But it's still discretion, it seems to me -- more (b) than (a), I would think.

Posted by: Orin Kerr | Nov 12, 2021 5:07:26 AM

Thanks, Orin. This is an important distinction. But I think it’s possible that legal principles here arise from a combination of Rule 10, statements in precedential opinions about cert discretion, and customary practice.

Posted by: Richard Re | Nov 11, 2021 9:04:20 PM

I wonder if it's helpful to distinguish between (a) how much discretion the Court has the legal authority to exercise, and (b) how the Court has tended to exercise the discretion it has. If the question is what legal standard governs, then that sounds like (a), in that the Court can do what it wants (outside certain specific kinds of cases). But much of the post seems to be about (b), that is, how it has tended to exercise its discretion. I tend to agree that what it does with (b) is usually pretty sensible from an institutional standpoint, but then that's not law: That's instead what 4 of the 9 Justices think in a given case.

Posted by: Orin Kerr | Nov 11, 2021 7:48:25 PM

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