Will the Supreme Court DIG it?

Nuts and Bolts is a recurring series by Stephen Wermiel providing insights into the mechanics of how the Supreme Court works.

Washington is well-known for its acronyms, and the Supreme Court is no exception. One example that usually signifies that something went awry at the court is the “DIG.” It stands for the procedure by which a case is “dismissed as improvidently granted.” While that may sound dry, such dismissals can be of considerable significance.  

Let’s back up and start with a simple explanation. When the court “DIGs” a case, it means the justices have decided it was a mistake to agree to hear the case. Sometimes this happens after the justices have agreed to hear arguments by granting a petition for review but before the arguments actually occur. More often, a “DIG” comes after the court has received briefs and heard arguments in a case. 

According to the Federal Judicial Center, the educational arm of the federal courts, the practice was first used by the justices in 1911 and has been employed ever since. In recent years, the court has dismissed cases two or three times per term. 

So that’s the what. Why this happens is more complicated. Like many aspects of the Supreme Court’s mechanics, there is some mystery about this process, since the justices often give no explanation for dismissing a case: The typical DIG is a two-line order that says, “The writ of certiorari is dismissed as improvidently granted,” and nothing more.

Court watchers and commentators have developed theories over time about why the court dismisses cases without deciding them. There are three common explanations.

First, the court will dismiss a case when the justices discover a procedural problem. They might take a case to decide an important constitutional or statutory question but then discover technical problems as they look more deeply. For example, they might see that the parties do not have proper standing (that is, a legal right to sue); that the issue was not raised or decided by a lower court (which means it cannot be brought up on appeal); that the lower court ruling was not a final judgment and so not fully appealable; that the case is narrower and more fact-specific than it appeared in earlier reviews; or that the case is moot (that is, no longer a live controversy).

Second, the court may dismiss a case when the justices feel that the issue being argued is not exactly the same issue that was first raised in the petition that the court agreed to review. This may, on occasion, be referred to as a “bait and switch,” a practice that is apparently of increasing concern to the justices. For example, last March during an oral argument in a habeas corpus case, Rivers v. Guerrero, a frustrated Justice Samuel Alito observed to the lawyer representing the prisoner whose petition for review the court had granted, “Well, we’ve had a mini-epidemic of cert petitions that have convinced us to take a case because there’s supposedly a conflict [between the appeals courts] on a certain issue, and then once cert is granted, the argument that is advanced by the petitioners, [is] quite a bit different from what we were sold at the petition stage. Is this another outbreak of the same disease?”

Third, the justices may occasionally dismiss a case because they could not reach agreement on how to decide the issue. This category may be the most difficult of the three to diagnose because the justices will likely give no inkling that deadlock is the reason for dismissing a case.

Before giving some examples, we may examine what is known about how this process works, again much of it based on the experience of practitioners and reading tea leaves by court watchers.

As an initial matter, justices typically DIG a case of their own accord. Indeed, it is generally assumed by Supreme Court practitioners that it is futile for the lawyers in a case to make a motion to ask the court to dismiss it. “The court has to decide for itself as a matter of institutional interest,” Deepak Gupta, a frequent practitioner in the Supreme Court, explained to me. Lawyers for the respondents – that is, the litigants who won in the lower court and are urging the court to leave that decision in place – may “make sure the court understands the reasons that might lead to a DIG,” Gupta said, but the court has to get there on its own.

What happens internally at the court is also a bit of a mystery. The court requires four votes to grant a petition and schedule it for argument, and it is thus widely assumed that at least one of the justices who initially voted to hear the case is among at least five who vote for dismissal. (Without this procedural safeguard, whenever four justices want to hear a case, the other five could turn around and vote to dismiss it.) Some commentators observe that this probably means there must sometimes be six votes to dismiss – five justices who did not vote to hear the case in the first place plus one of the justices who did vote to grant review.

There is yet another aspect of this process shrouded in mystery because it occurs entirely inside the court and is never seen by those outside the institution. In the court’s internal process, petitions are screened by law clerks on a rotating basis for seven of the nine justices (all but Alito and Justice Neil Gorsuch, who have their own law clerks review the petitions). In the lore of Supreme Court clerkships, it is understood to be a real blunder if a clerk recommends that the court hear a case that subsequently turns out to be one that the justices dismiss for procedural or technical problems.

Indeed, some court watchers suggest that concern over mistakenly recommending that the court grant review leads the justices’ law clerks to be overly cautious in the memos in which they make recommendations regarding how the court should act on a particular petition. At a time when the number of cases decided by the court each term is at quite a low level, law clerk caution may thus contribute – the theory goes – to the court taking fewer cases for argument and decision.

For more than a decade the court has used its own safeguard. When the court reviews a case and makes an initial choice to grant review, the justices often hold the case for an additional week to check for any technical issues. Still, some cases slip through the cracks, and the flaws in bait-and-switch cases that arise at oral argument would not be caught by this process.

One more important observation is necessary. When a case is dismissed after full briefing and oral argument, the process will have been extremely expensive for little result. In Laboratory Corporation of America Holdings v. Davis, dismissed in June after an April oral argument (and discussed more fully below), there were 18 “friend of the court” briefs in total filed by both sides. Along with the fees to the principal lawyers for the parties, cumulative legal expenses in the case are certain to have run in the hundreds of thousands of dollars.

Some recent examples of DIGs illustrate how the process plays out in particular cases. I also offer insights from the justices in some of the rare instances when there is a challenge to a case’s dismissal.

When the court dismissed Lab Corp. as improvidently granted, Justice Brett Kavanaugh explained in an unusual dissent that it had done so because it was moot (although he disagreed with this reasoning). Specifically, the dispute involved certification of class actions, and the lawyers exchanged letters to the justices arguing over whether the court had lost jurisdiction over the class of plaintiffs – apparently, the court decided that it had. 

Last April, the court ruled in Medical Marijuana Inc. v. Horn that a plaintiff using the Racketeer Influenced and Corrupt Organizations Act may sue for triple damages for harm to business or property even when personal injury was the cause. In the 5-4 ruling, Justice Clarence Thomas dissented, writing that the issue of “how to define ‘injured in his business or property,’ was not decided below and is inadequately briefed.” He urged the court, unsuccessfully, to dismiss the case as improvidently granted. 

Another dismissal last term was Facebook, Inc. v. Amalgamated Bank. There were no opinions in the case, just the terse dismissal, so there is no way to know for sure what the court was thinking, but questions at oral argument may have provided an answer. The case posed the question of what obligation under federal securities law a company has, in informing shareholders of the risk of a future data breach, to disclose that a past data breach has already occurred. During portions of the oral argument last November, several justices, including Alito and Kavanaugh, asked whether the issues being addressed were the same as the questions presented by Facebook in their petition. The court seemed uncertain at times about what issue they were being asked to decide, and for that reason may have bounced the case. 

DIGs undoubtedly take a toll on the court and practitioners who appear before it. In many instances a DIG is embarrassing because it means the court made a mistake in scrutinizing a case to decide if it merited review with full briefing and oral argument. In some instances, a DIG may blemish the credibility of a lawyer who pulled a “bait and switch” in the legal arguments causing the dismissal. A DIG may also embarrass a law clerk who recommended that the court hear a case, missing a technical problem that led to the court’s dismissal. The bottom line: At the end of the day, there is not much to dig about DIGs.