Today’s order list from the Court included three opinions respecting the denial of certiorari – i.e., denials of review in which the Justices felt strongly enough about the issue that they went to the effort of writing separately. Almost always, when a Justice votes to review a case but there are not enough votes to grant certiorari (four are required), the dissent is not publicly noted. So the parties and lawyers – and litigants in later similar cases – have almost no way of knowing whether the issue generated any interest at the Court.
Two of the opinions today were traditional dissents from the denial of certiorari. In a habeas corpus case, Rapelje v. McClennan, Justice Alito wrote an opinion (joined by Justice Scalia) arguing that the Court should review the decision by a court of appeals on how to review a summary order of a state court. In a death penalty case, Woodward v. Alabama, Justice Sotomayor wrote an opinion (joined by Justice Breyer) arguing that the Court should review Alabama’s practice of permitting judges to override juries’ death penalty recommendations. The two cases illustrate that frequently Justices Scalia and Alito will view the federal habeas laws as imposing the most significant constraints on overturning convictions, while Justices Breyer and Sotomayor will have the most interest in considering issues related to the administration of the death penalty.
The more interesting opinion to me as a matter of Supreme Court practice is Justice Alito’s opinion respecting the denial of certiorari in Martin v. Blessing. In an opinion of this kind, a Justice agrees that certiorari should be denied but emphasizes that the denial of review does not endorse the lower court’s ruling. Sometimes the opinion notes a procedural flaw in the case that prevents Supreme Court review. But sometimes there is a further subtext: the opinion is a warning shot that some anomalous practices should be stopped without the Court ever having to get involved.
The petitioner in Martin challenged what Justice Alito accurately described as “a highly unusual practice followed by one District Court Judge” of requiring that class counsel in class actions “ensure that the lawyers staffed on the case fairly reflect the class composition in terms of relevant race and gender metrics.” In his opinion, Justice Alito indicates that he agrees that the Court should not review the trial court’s practice at this time because it is so uncommon, but he then identifies an array of constitutional concerns with it.
One could read the opinion as signaling that the Court is not interested in this issue and sees no problem with the district court’s practice, because of course no other member of the Court joined Justice Alito. It is impossible to know for sure, and I cannot say with perfect confidence either way. And it may well be that the Court itself would be divided on the merits. But my sense is that opinions like this one generally are intended to signal that the practice should be discontinued voluntarily, so that the Court does not need to invest its resources in hearing a case to strike it down. And personally, I think is overwhelmingly likely that if the Court did grant certiorari to decide the validity of such a class action order, a solid majority of the Justices would invalidate it. It will be interesting to see if the judge – Judge Harold Baer, Jr. of the Southern District of New York – continues the practice.