Tuesday, October 06, 2009

When Is a Cert Denial News?

By Mike Dorf

Many lawyers familiar with the work of the Supreme Court (including yours truly) share at least one pet peeve: Annoyance at news outlets that report a certiorari denial as though it were a decision on the merits.  It's bad enough when the reportage correctly says the Court "let stand" some lower court ruling, for even then there is a risk that lay readers will be left with the impression that the Justices made a decision on the merits to let the lower court ruling stand.  But sometimes the headline will be plainly inaccurate.

With a new Supreme Court Term just underway, we have a frontrunner for the most misleading/false reports of cert denials.  Consider the following from FoxNews: "Supreme Court Strikes Down Case From Man Claiming to Be Elvis Presley's Son."  The story itself is better than the headline.  It makes clear that the Court denied review of lower court rulings against the putative Elvis, Jr.  But this still raises the question of why this particular cert denial was singled out for any coverage.  Surely it cannot be because the case presents any issue of importance.

If I were inclined to give FoxNews the benefit of the doubt, I would say that this is simply a weird-pop-culture-meets-law story.  But I think it's no accident that the story is listed on the "Politics" section of the FoxNews website.  The political salience of Elvis is not immediately obvious, notwithstanding his well-known meeting with President Nixon.  However, the political message FoxNews conveys by highlighting the Presley cert denial is unmistakable: Frivolous lawsuits are choking the courts, even to the point where the Supreme Court must waste its time on loopy Elvis cases.

Seen in this light, the highly misleading FoxNews coverage of the Elvis cert denial is of a piece with the broader conservative campaign for restricting access to the courts based on a largely nonexistent litigation explosion.  It is extremely doubtful that any Justice spent more than a few seconds thinking about the Elvis petition, and I would be surprised if the cert pool memo took the law clerk more than 15 minutes --at most a 1/2-hour, given that it was probably written over the summer by a new clerk still learning the ropes.


Timothy said...

I wholeheartedly agree with this post in general, but I would add that it can cut both ways--that, although a cert. denial can be misleadingly represented as saying more than it really says, it can just as easily be misleadingly represented as saying much less.

Case in point, take Rush Limbaugh's representation of then-Judge Sotomayor's record before the Supreme Court--what he characterized as "an 80% reversal rate." In fact, of course, well over 99% of her decisions were and are still good law in the 2d Circuit, having never been reviewed, let alone reversed. The only way to get the 80% figure is to use reviewed cases as the denominator.

But is this the right denominator? It seems to me, given the wholly discretionary nature of the Supreme Court's docket, that a judge deserves at least some credit for staying off that docket altogether. Witness, for example, the great fun Ted Olson has every year at the Federalist Society's roundup at the expense of that most reviewed of circuits, the Ninth. The (intuitively satisfying) fact is that cert is likelier to be granted where the decision below is likely to be reversed, a fact borne out by the usual (.6-.75) reversal rate of Supreme Court cases in general. In short, to judge a judge solely by her reversal rate in reviewed cases would be a bit like judging batting averages in a game where the number of at-bats was itself a measure of the batter's quality. It would be misleading to say the least.

I agree with Professor Dorf that the FoxNews story referenced in the post is misleading and very probably disingenuous, but I would only point out that it is possible to have a mirror-image pet peeve of the one he describes--that, at least for a while, I counted among my pet peeves Limbaugh and company's failure to take proper account of cert denials.

Paul Scott said...

Sort of. The relevant calculus (if there is one at all) is reversal rate (of cases reviewed)/average reversal rate (of all cases reviewed).

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