Invisible Justices Part II: The Anonymous Writ of Certiorari
By Eric Segall
Every year the Supreme Court of the United States receives over 7,500 requests from litigants who have lost their lawsuits in the lower courts and urge reversal of those decisions. Lawyers spend thousands of hours working on briefs supporting those requests, and the parties pay those lawyers significant amounts of money. In recent years, the Court has granted approximately seventy-five to eighty of those requests per year. These requests come to the Court through the mysterious petition for a “writ of certiorari.”
The decision whether to grant or deny a certiorari petition is one of the most important decisions the Justices have to make. Which cases the Court deems worthy to review may dictate national policy across the spectrum of important social, legal, educational, political, and economic issues. Yet, although there are instructions concerning the timing and structure of the briefs that need to be submitted, and a few vague considerations the Court may take into account in the process of deciding whether a case is worthy of its attention, there are no written rules or statutes governing how many Justices it takes to hear a case or whether the votes of the individual Justices need to be recorded. The present informal (but consistent) practice is that it takes four Justices to agree to grant certiorari for a case to be heard. The Justices keep secret who votes to grant the petitions and (almost) never provide reasons for denying a petition to hear a case, although occasionally dissenting justices will write separately to argue that a denied petition should have been granted (which then sometimes prompts a Justice who voted to deny certiorari to respond by explaining why the case should not be heard). Amazingly, to the best of my knowledge, no formal record of the individual votes to grant or deny certiorari is kept by anyone.
The Court has not explained why it keeps the individual votes on whether to grant a writ of certiorari secret from the American people. Justice Stevens gave a talk at Georgia State College of Law in 2014 and said he had never considered in his thirty-five years on the bench why the certiorari votes are secret. He remarked that it might be because “it has always been that way,” but also frankly acknowledged that tradition alone may not constitute a good reason. There are strong arguments that this information is important and relevant to public discussion.
For example, shouldn’t we be able to trace the Justices’ personal certiorari votes over time to better understand how these public officials make important decisions? At the moment, we can make statements about the Court as an institution and the cases it decides to hear, but we have no way of assessing the work of each individual Justice when it comes to their certiorari votes. We would not allow Congress or state legislatures to record only their final votes without knowing who voted for the laws and who voted against them. We could judge the legacies of Supreme Court Justices more accurately if we knew their records on certiorari issues.
There are also reasons why litigants might be interested in which Justices voted to hear a case. It is well accepted that, at the time of this writing, Justice Kennedy is the swing vote on the Court in many important areas of constitutional law, including abortion and affirmative action. This year the Court will decide cases involving both issues, and we have no idea how Justice Kennedy (or any other Justice) voted on the certiorari questions. Knowing whether Justice Kennedy was one of the four (or more) votes in favor of hearing these cases might be relevant information to the parties. Lawyers litigate important cases in the lower courts with an eye towards the swing Justices on the Court, and they write the briefs that are filed in the Supreme Court in the same way. Knowing which Justices wanted to hear a case and which didn’t might affect litigation strategy.
Are there valid reasons to keep the Justices’ individual votes on certiorari secret? Some might argue that, if the certiorari votes are disclosed, the public might mistake a vote to hear or not to hear a particular case as an indication of that Justice’s views on the merits of that case. But even if that is likely to happen, the cure is more information about the certiorari process, not secret votes. As a general rule, the government is not allowed to hide truthful, non-privileged information from the American people simply because the information might be misinterpreted. In addition, disclosing the votes after the case is decided (not ideal but much better than the current process) eliminates that problem.
The invisible nature of the Justices’ certiorari process symbolizes a significant problem with the Supreme Court’s practices more generally. Normally, there should be (and usually is) a strong presumption in our society that government processes be open and transparent. When it comes to Congress and the President, there are strict disclosure requirements, including open-records laws and televised proceedings, and when the elected branches or the states want to keep secrets, we place the burden of proof on them to demonstrate the need for that secrecy. But with the Supreme Court, there seems to be an opposite presumption of secrecy and anonymity. This presumption should be changed. The Justices perform an immensely important public duty that affects all Americans when they decide which cases to hear and which cases not to hear. Why should they cast these final votes in secrecy with no accountability?