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Tuesday, November 16, 2021

How Discretionary is Certiorari?

I recently outlined an account of the justices' discretion with respect to certiorari. Briefly, I suggested that a standard generally governs the decision to grant cert, a permission generally protects votes to deny, and that a presumption or mandate in favor of granting cert governs a special subset of cases.

In the comments, Orin Kerr thoughtfully expressed some doubts about my account, essentially suggesting that cert votes are purely discretionary. My post had criticized that view, but I have to admit that it's plausible. And I wondered how many people share it. So I put up an extremely unscientific twitter poll. Apart from lots of "What the FERC?!" comments, here are the results:

Screen Shot 2021-11-16 at 11.07.48 AM

This is of course a very crude survey, even apart from the obvious selection problems. What each of these categories means is unclear, and they might overlap.

There are also follow-up questions to ask. For those who reject the pure discretion view, for instance, is the problem more about granting all FERC cases, or denying all non-FERC cases? Should the answer depend, as one commentator suggested, on the subjective goals of the justice singling out FERC cases? And, to what extent are supporters of the precedent/custom option basically asking whether the current justices do in fact feel bound to vote in a certain way?

Naturally, I wouldn't want to put any weight on the vote breakdown here. Perhaps the poll offers some evidence that there are diverse views on the scope and source of the justices' certiorari discretion. Or maybe the poll's only use is to prompt more thought and discussion.

Posted by Richard M. Re on November 16, 2021 at 11:39 AM | Permalink


“It appears sufficient--for First Amendment, due process, and "judicial review" purposes--that The Times can defend in state court, appeal through state court, and reach SCOTUS if necessary. No one has argued that allowing PV to bring this private suit and to make The Times defend in state court "thwarts federal judicial review" of a significant constitutional issue.”

True, but what if Time is of the essence and you know that a delay will result in an increase in future harm?

Take the Vaccine Mandate that because in some susceptible people it has the potential to cause harm through targeting the spike protein that is responsible for iron regulation or dysregulation depending on the balance of hepcidin for that particular individual, who possessing equal human Dignity, is equal before The Rule of Law.





Posted by: Nancy | Nov 28, 2021 1:19:29 PM


God, The Ordered Communion Of Perfect Complementary Love, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage.

Why not begin and end by “Rendering onto Caesar that which belongs to Caesar and to God, What Belngs to God”?

Posted by: Nancy | Nov 26, 2021 3:20:22 PM

“The poll means nothing.”

The poll means something in that no two cases are exactly alike, including FERC cases, so the question, how discretionary is Certiorari, in general, depends on the type of questions brought before the Court, and how closely the question before the Court follows the letter and spirit and thus the essence of The Rule of Law.

For example, a FERC Case could not be used to justify population control through either the act of abortion or the act of euthanasia, as both these issues are not State’s Rights issues, they are both a Human’s Right issue, as they both involve protecting our inherent Right to Life , which is Unalienable because this inherent Right is Endowed to us from God, not Caesar.

The answer to the specific question would would be 4, none of the above due to not enough information, which is something, not nothing.

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Posted by: kushabh das | Nov 23, 2021 5:06:30 AM

Hi Professor Gerdes,

It is important to note that:

“The Supreme Court is the last line of defense for the separation of powers and for the rights and liberties guaranteed by the Constitution.”

Brett Kavanaugh

Which is why I am baffled by the failure of The Supreme Court to step in when these rights and liberties guaranteed by our Constitution are being trampled upon due to a great deception that includes the mandating of an injection that that we now know does not provide immunity from a particular disease, does not cure the disease, nor does it stop the spread of the disease, and in some cases, can lead to spreading variants of this particular disease, while not considering the toxic repercussions of furin inhibition.

To whom do we go, when the last line of defense is not willing to hear the merits of a legitimate concern about a mandate, that has no precedent, and in fact, if left unchallenged, cannot possibly justify the violation “of Criminal Code, the Employment Standards Act, the Workplace Health and Safety Act, the Nuremburg Code, and assorted other laws”, not to mention “the expectation of good faith and fair dealing, which cannot possibly exist if the mandate does not include “possible remedies for breach of contract that include general damages, consequential damages, reliance damages, and specific performance”.

Posted by: N.D. | Nov 19, 2021 1:03:36 PM

I’m wondering if the disagreement between you and Orin is a purely verbal matter as I’m not seeing how you two disagree about the actual operation of the world. This seems just like a question of where to draw the line between things you call law and those you don’t and absent a normative theory in the background (e.g. natural law) that attempts to make that a principled distinction it seems entirely terminological.

If we break this down to actual observable events I think everyone involved agrees that: a justice so voting would get strange looks, puzzled questions and even likely some ‘hey wtf are you doing’ asides from his colleagues on the court (and the SCOTUS media would certainly be abuzz about it). OTOH, it seems like both you and Orin agree that no plausibly effective exercise of power would be brought about to stop a justice so determined, e.g., no impeachment, no public excoriation/demands for resignation from colleagues.

Ok, so what’s left to disagree about? Is it just that you (Richard, if I may) wants to say ‘bad bad’ if a justice did this and Orin wants to shrug making the dispute more attitudinal than factual? Maybe tactically it’s better to try and call that stuff law if you want to have more influence on the future direction but that’s more political than academic.

But I presume I’m actually missing something major so maybe someone could point out where I went wrong.

Posted by: Peter Gerdes | Nov 19, 2021 8:41:01 AM

And least we forget, it is never necessary to destroy innocent human life, to save human life.
Pray and never cease Praying, for respect for the Sanctity of all human life, for all human life, from the moment of conception, possesses equal human Dignity, and is thus worthy of being treated with Dignity and respect in private and in public.

Godspeed and God Bless🙏💕

Posted by: N.D. | Nov 18, 2021 9:58:46 AM

Good morning, Professors.

How Discretionary is Certiorari?

It depends upon the question bringing brought before the Court. For example, one could argue that all sons and daughters of human persons, being in essence, human persons, possess equal human Dignity, and thus, being equal before the Law, have the inherent Right to have their lives secured and protected, while one could not argue that all vaccines are equal before the Law, because not every vaccine produced has been shown to be safe and effective against a particular disease.

Perhaps the question before the Court should be “ can informed consent be given in good faith if one Is being mandated to take an injection of a “vaccine” that we now know does not provide immunity from a particular disease, nor does it stop the spread of the disease, and in some cases, can lead to spreading variants of a particular disease, while not considering the toxic repercussions of furin inhibition?

We already know through both Faith and reason, that human persons can only conceive human persons, however, when it comes to the unconstitutional vaccine mandate, I am not certain how lawyers should proceed.

I have a degree in Elementary Education, and have completed the requirements for a Para Legal Certificate/Degree.
This is just a suggestion on how a lawyer could possibly proceed, so it cannot be construed to be “legal advice”.

There is no precedent for mandating this particular type of “vaccine”, because the Covid19 medicine does not protect you from getting Covid 19, nor does it protect you from spreading Covid 19.

We cannot possibly know the merits of a Covid 19 Vaccine Mandate, if we do not know the merits of the Covid 19 Vaccine.

We cannot possibly, in good faith, consent to receiving the vaccine, if the vaccine has not been properly vetted. We cannot possibly know if the vaccine has been properly vetted without obtaining information about the vetting of the vaccine.

Here is what we do know:

(Regarding the not so distance sequence similarity)
COVID-19 and iron dysregulation: distant sequence similarity between hepcidin and the novel coronavirus spike glycoprotein


And Angiotensin II alters the expression of duodenal iron transporters, hepatic hepcidin, and body iron distribution in mice


Pro-hepcidin is unable to degrade the iron exporter ferroportin unless maturated by a furin-dependent process


Based on the above information, one needs to consider this:

“Even if selective inhibition of individual PCSKs can be achieved, systemic long‐term inhibition will most likely have detrimental effects, as PCSKs are required for the activation of hundreds of cellular substrates. Thus, local applications such as targeted treatment of tumors or topical treatment of bacterial and viral infections may be more feasible than systemic therapy.
Finally, the ability of tumor cells or pathogens to evolve resistance or evasion mutations remains poorly investigated. For example, several substrates such as dengue virus prM harbour suboptimal furin target sequences and may optimise their cleavage sites upon therapy to enable sufficient cleavage in the presence of inhibitors.” (See page 30 of 54)


You definitely want to speak to this group and find out what further research was done in regards to this:

“I mentioned earlier that drug developers prefer to target
molecules that are unique to a pathogen. For this reason, I
think furin has received less attention as a target for drug
development. The expectation has been that inhibition of this
enzyme, which plays an essential role in many normal processes,
might cause significant physiological damage to normal tissue.
Consistent with that prediction is the fact I mentioned before, that genetic inactivation of furin causes death of mouse
embryos. Nevertheless, I do believe that inhibition of furin
should be examined as one possible avenue...”

And if it can be determined that the researchers did not do their due diligence in regards to the long term effects of the inhibition of furin, then, why not consider this?

“In addition, Coles states, “you also want to notify them of all the laws they’re breaking, and they’re breaking laws under: the Criminal Code, the Employment Standards Act, the Workplace Health and Safety Act, the Nuremburg Code, and assorted other laws. So you want to identify the laws so that they can be made aware that you’re aware, and that you will hold them accountable for that.”


Posted by: N.D. | Nov 18, 2021 9:37:17 AM

Thanks yet again. I'll keep in mind the danger of ambiguities for my next twitter poll :)

Also, Hash, I appreciate your point about how R10 seems asymmetric in constraining grants more than denials ("only"). I wish I had made that point in my original post.

Posted by: Richard Re | Nov 17, 2021 9:38:54 PM

Sorry to be late to the party, but I'm again with Orin on this. I didn't realize that Richard was trying to use "custom" in the less colloquial, more binding sense (despite his pairing of the word with "precedent", which now makes more sense). And as that's what he meant, then, as he predicts, I do think that A is the only right answer, because prior cert decisions aren't "binding" in any legally relevant sense.

Frankly, I think B has a better claim than C, because it's hard to believe that anyone actually thinks that each and every FERC case is "compelling", and the Rule does mandate that cert will be granted "only" for compelling reasons, so the hypothetical Justice likely is subjectively violating the Rule. But because it's impossible to rule out the hypothetical person who does think that FERC is compelling in every instance, I can't say that B is necessarily true (and the fact that the hypothetical Justice denies everything else doesn't even arguably violate the Rule, since nothing in the Rule *requires* granting in any case, even if the "consideration" of various factors implies that some such cases will be granted).

Posted by: Hash | Nov 17, 2021 9:26:29 PM

Interesting, Richard. I suppose I have heard "custom" used that way in the sense of "customary international law," which I understand to reflect the proposition that if all the nations do something consistently, it can be deemed the implicit "law" that they are following. But yes, I was just thinking of "custom" in the sense of habit or common practice.

Posted by: Orin Kerr | Nov 17, 2021 6:55:57 PM

Thanks again, Orin. I think we might just be tripping each other up with an ambiguity. You write: "But a customary way of exercising discretion is just a common way, not in any sense a binding way."

By "precedent/custom," I meant something with some bindingness to it. That is standard usage in some areas, and I just found that the first definition of "custom" in Black's Law is: "A practice that by its common adoption and long, unvarying habit has come to have the force of law." I found a similar definition in Ballentine's.

Now, having said that, I realize that "custom" can be used more loosely to mean something like "habit" or "pattern." (Part of why I packaged "custom" with "precedent" in my options was to cut against that understanding). I now understand you to be using "custom" in that looser way, simply to refer to a pattern of conduct. But if you instead used the definition I gave above, then it seems that you would go with (A) only.

Perhaps more interesting than our apparent terminological confusion, I also realize that there can be non-legal customs (like Hart's example of taking one's hat off in church -- which, where applicable, isn't just a habit but rather a social rule). You've made me wonder how much (for me at least) turns on whether the norms of the cert process are legal rules as opposed to non-legal customs. In other words, maybe (A) and (C) are both true b/c the rule of discretion is the law whereas the custom is a non-legal norm that (if such a thing is possible) just happens to be applicable to Supreme Court justices. So, many thanks for that thought -- and, of course, for all the others, too.

Posted by: Richard Re | Nov 17, 2021 4:05:55 PM

Richard writes: "Are you basically saying that there's legal discretion to violate the non-legal rules established by precedent/custom here?"

I can't speak for Hash, but I think of "law" as being a framework that binds an actor (such that if they reject that binding thing, they are "violating the law") versus "discretion" as something that unbinds an actor (so that they can do what they feel is appropriate, rather what some rule-maker has said they have to do). You can have a system of law in which the law adopts a custom, making the custom binding and therefore law. Or you can have a system of discretion in which there happens to be a custom of exercising the discretion in a particular customary way. But if it's a system of discretion, you're not "breaking the law" if you decide to exercise the discretion a different way. You may be eccentric, or a weird.
But a customary way of exercising discretion is just a common way, not in any sense a binding way. (I suppose "habit" captures the idea, although I don't recall how Hart used it so I'm not positive on that.)

Posted by: Orin Kerr | Nov 17, 2021 2:21:02 PM

Orin & Hash: Thanks to you both. I'm hesitant to prolong this discussion much further, but I'll ask just one follow up: Are you basically saying that there's legal discretion to violate the non-legal rules established by "precedent/custom" here? On that view, Options A and C describe different normative systems (law and non-law). Or are you denying that "precedent/custom" has any normative force at all in my hypo. On that second view, you would be interpreting "precedent/custom" to be more of what HLA Hart called a habit, rather than a rule.

Posted by: Richard Re | Nov 17, 2021 9:23:16 AM

Fwiw, I had the same exact reaction as Orin.

Posted by: Hash | Nov 17, 2021 8:28:26 AM

Fwiw, I had the same exact reaction as Orin.

Posted by: Hash | Nov 17, 2021 8:28:26 AM

Good post fellas!

Posted by: Jeremy Lake | Nov 17, 2021 4:25:37 AM

Richard, I realize responding that "you may have asked the wrong poll question" isn't the most helpful comment, but, with that said, I think you asked the wrong poll question. If I had voted in that poll, I would have found two answers were equally correct. The Justice's voting practice would clearly run afoul of custom, so answer C would be correct. But it would also be within the Justice's discretion, so answer A would also be correct. My point is that it's totally legal to exercise discretion in non-customary ways. That's what makes it discretionary, as I see it. Discretion gives you the authority not to follow custom.

Posted by: Orin Kerr | Nov 17, 2021 4:15:00 AM

Here's a poll I did and the poll means nothing.

Classic twitter post.

Posted by: thegreatdisappointment | Nov 17, 2021 1:47:33 AM

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