Oregon State Bar Bulletin — DECEMBER 2002

Dissenting from Not Deciding
Clues about what the law might become — and how it will get there
By Jeff Bleich & Deborah Pearlstein

While attorneys are used to seeing justices dissent from an opinion of the Supreme Court, the practice of dissenting is a relatively new phenomenon. Unlike the Court of Chief Justice John Marshall, and even the courts of Oliver Wendell Holmes and Louis Brandeis, which rarely saw dissents, published dissents are now almost expected in Court opinions, and have even expanded into more exotic forms of dissents such as dissents from 'non-decisions' and 'statements' regarding those dissents. Scholars have debated the value of dissenting from published decisions, including whether dissents are more likely to validate or undermine the authority of the Court’s ruling. But for better or worse, all of the sitting justices on the Court routinely pen dissents that question the Court’s reasoning or emphasize the unique facts of the case in order to limit the reach of a particular decision. Why the justices write dissents from denial of cert — essentially, dissents from a decision not to decide a case — may be a more complicated question.

No one but the justices themselves can explain precisely why they now more readily dissent from the opinion not to hear a case — a 'dissent from denial of cert.' Historically, these dissents did not assert that the case should be decided a certain way, or articulate a particular view about what the law is or ought to be. Instead, such dissents usually concerned whether the case raised the sort of issue that the Court as an institution should be deciding at that point in time. As the practice of dissenting from denial of cert has gained frequency, however, the dissenters have been more willing to address the wisdom of the lower court’s decision head on, and in some cases seem to intend to send a message not only to the lower courts about the hazards of following a particular decision but also to attorneys and litigants who might try to get the same issue before the Court the next time. These dissents provide a rare insight into the Court’s case selection process. A dissent may also foreshadow how one or more justices hope to reshape the law. In short, although these dissents from denial of cert have no binding effect on what the law is today, they are worth studying, because they offer important clues about what the law might become — and how it will get there.

Dissension In Action
Historically, the Court decides whether to grant cert and hear the merits of a case based on the 'Rule of Four.' If four justices vote to review a case, the petition is granted. Which four (or more) justices actually voted to hear a given case is generally not a matter of public record. While counsel may (and often do) make educated guesses about who voted to grant cert and why, the Court as a matter of practice does not explain its reasons for taking up a particular case. Ironically, that is not always the case when the Court decides not to hear a matter on the merits. On occasion, a justice (or two or three) may write separately to explain why he or she disagrees with the super-majority’s decision not to grant cert. These dissents from denial are often overlooked by the press.

Dissents from denial often contain entertaining, and intriguing, public statements from the Court about the justices’ views. Last term, for example, the justices took the unusual step of actually exchanging views about denying cert in an establishment of religion case. The case at issue concerned whether a six-foot granite monument inscribed with the Ten Commandments and erected in front of an Elkhart, Ind., municipal building violated the First Amendment’s ban on entangling church and state. The monument had been the brainchild of a 1950s Elkhart juvenile court judge, who prevailed upon a priest, a rabbi and a Protestant minister to dedicate the monument as a jointly approved version of the Ten Commandments. The judge evidently hoped to inspire troubled youth to observe a common code of conduct. In 1998, residents of Elkhart sued the city in federal court claiming that the monument ran afoul of the Establishment Clause. The federal trial court granted summary judgment for the city, but the U.S. Court of Appeals for the 7th Circuit reversed and held that the monument indeed violated the Establishment Clause. The 7th Circuit remanded the case to the trial court to fashion an appropriate remedy.

Joined by Justices Scalia and Thomas, Chief Justice Rehnquist produced a five-page dissent — arguably longer than many of the chief justice’s opinions on the merits of argued cases — contending that the Court should have granted cert to reverse the 7th Circuit’s opinion. Considering the monument in context, the chief justice explained, it was clear that it sends no religious message. On the contrary, he concluded, the monument’s location in front of the local courthouse emphasizes the commandments’ role as the philosophical underpinning of modern, secular law. As the chief justice put it, 'the monument does not express the city’s preference for particular religions or religious beliefs in general. It simply reflects the Ten Commandments’ role in the development of our legal system….'

Unwilling to let the dissenters go unchallenged, Justice Stevens took the rare step of dissenting to the chief justice’s dissent. Beginning his 'statement respecting' the denial of cert with a disclaimer as to why such dissents from denials of cert should be avoided in general, Justice Stevens held up the chief justice’s latest effort as Exhibit A in favor of abandoning the practice. The three-justice dissent would give one the impression, Justice Stevens averred, that the monument’s text was 'nonsectarian' in meaning and effect. Yet the dissenters omitted the fact that the first two lines of the monument’s text, in lettering substantially larger than the rest of the text, read: 'THE TEN COMMANDMENTS – I AM the LORD thy God.' Moreover, he observed that the dissent understated the religious impact of the two Stars of David and the symbol of Christ that were imprinted upon the monument. Leaving unstated the relevance of these facts to the constitutional analysis at issue, Justice Stevens concluded by referring readers to the decision of his former colleague on the 7th Circuit, Judge Ripple, whose 'thoughtful opinion' provided ample explanation in Justice Stevens’ view for why cert was denied.

The Dissent From Denial Debate
The close attention paid by these justices to authoring a set of opinions that have absolutely no effect on the law is intriguing on its face. Even more than a dissent to a case decided on the merits, a dissent from denial of cert has the unmistakable quality of personal venting. As Justice Stevens put it in an opinion respecting the denial of certiorari only three years after he had joined the Court: 'One characteristic of all opinions dissenting from the denial of certiorari is manifest. They are totally unnecessary. They are examples of the purist form of dicta, since they have even less legal significance than the orders of the entire Court (denying cert) which, as Mr. Justice Frankfurter reiterated again and again, have no precedential significance at all.'

Given their practical insignificance, why would any justice bother to file a dissent from denial (let alone bother responding to one)? Perhaps the most obvious reason is the need for personal self-expression, a need to which the justices are hardly immune. The proliferation of dissents on the merits of decided cases during the latter half of the 20th century suggests that the justices gain some psychological satisfaction from expressing their views simply for the sake of getting it off their chests. This can also be a way for the justices to express their frustration with a system or line of decisions which they think is wrong. In Callins v. Collins, for example, then-Justice Harry Blackmun served notice in a dissent from denial of cert, that henceforth he would vote to grant review in order to reverse any capital conviction on the ground that he as a justice would no longer 'tinker in the machinery of death.' This sort of dissent allows justices to express their unwillingness to be seen as parties to something that they cannot intellectually abide or that causes them personal angst. Such dissents not only ease the conscience of the dissenter, but also they offer a justice the satisfaction of trying to expose a perceived problem with the Court’s decision-making process or to reveal a deeper 'truth' of the law — or as close to 'truth' as constitutional interpretation permits.

Without discounting the 'truth speaking' and cathartic functions of these dissents, there is a second, more practical function served by a dissent: encouraging litigation on questions intended to drive the law toward a particular result. In this effort, both political ends of the Court can boast a significant history. In 1963, for example, Justice Goldberg (joined by Justices Douglas and Brennan) published a dissent from denial of certiorari in Rudolph v. Alabama, identifying three questions about the death penalty — not presented by the petitioner in that case — that he thought 'relevant and worthy of argument and consideration by the Court.' The Court had before then avoided much involvement in death penalty cases, but Justice Goldberg’s cue had the immediate effect of inspiring lawyers for the NAACP Legal Defense Fund to devise a strategy for achieving a de facto moratorium on executions. Likewise, then-Justice Rehnquist’s dissent from denial of cert in Snead v. Stringer (1981) foreshadowed a generation of the Court’s federal habeas jurisprudence elaborating on Justice Rehnquist’s lament that yet another federal habeas court had reached a decision 'squarely contrary to' the state appeals court, again resulting in the 'exclusion of evidence which the state court system had found to be harmless.' Over the past few years, Justice Breyer has consistently dissented from denial of cert to any number of cases that have come before the Court challenging California’s three-strikes law (which imposes substantial criminal penalties upon a third felony conviction). The Court has finally taken up the three-strikes question and sits poised to decide this term whether 'three strikes' violates the Eighth Amendment

As these examples illustrate, dissents from denial can have the desirable effect for lawyers of focusing the issue for decision in an otherwise broad area of confusion. A petition for cert that highlights unresolved issues raised by one or more justices may well gain more attention in the pile of cert petitions reviewed each week than less focused petitions. Similarly, dissents from denial provide perhaps the most reliable means of head-counting to help litigators determine how many of the nine justices may be prepared to address an open question in the law, or how many might decide a particular question a particular way. As in the death penalty and habeas contexts, insight into these questions can shape an entire litigation strategy for a group seeking to drive the law in one direction or another. Seen in this way, dissents from denials arguably enhance judicial efficiency — saving lawyers from pursuing appeals down paths the Court lacks the votes to pursue, and signaling when it is time to litigate and appeal an issue whose uncertainty has gone on long enough.

Despite such arguably useful effects, many justices — and in particular Justice Stevens — have insisted that such dissents are a bad idea because their potential to mislead far outweighs any supposed benefits. 'Since the Court provides no explanation of the reasons for denying certiorari, the dissenter’s argument in favor of a grant are not answered and therefore typically appear to be more persuasive than most other opinions.' Singleton v. Commissioner (1978) (Stevens, J., opinion respecting denial of certiorari). Worse, Justice Stevens has repeatedly pointed out, such dissents contribute to the mistaken view that the Court’s orders denying cert reflect a decision on the merits of the case. And dissenting from denial, like the practice of dissenting generally, runs contrary to certain values of the rule of law. Such dissents may be seen to weaken the Court’s authority — and the law’s independence from popular will — by revealing shortcomings in an opinion and how the membership of the Court may affect the outcome of a case.

Finally, dissents from denials is that they may brush up against the policies underlying the Constitution’s prohibition against advisory opinions. By signaling which kinds of cases the justices would like to hear, particularly on an issue the court has not yet addressed, these dissents effectively ask that certain petitions be filed or express a view about how a case that was never briefed to the Court should be decided. In doing so, these opinions undermine the image of restraint and 'passive virtue' that lends the courts some of their power and authority. Justices’ opinions are honored in part because a decision is required by the litigants themselves who thrust the issue upon the justices. Where justices seem to reach out to decide certain disputes or issue an opinion expressing how they would have decided a particular matter, they make the Court an unmistakably active participant in the timing and evolution of constitutional law.

Whatever the value of dissenting from denial of cert, the practice shows no sign of abating. The justices issue these dissents perhaps in part to vent, but also as a clue to litigators hoping to get their case before the Court, and as guidance to lower courts about the shelf life of a particular legal interpretation. As a result, they provide one of precious few glimpses into the Court’s method of case selection, and they may offer a blueprint for the shape of the law to come. 

The authors are litigators at Munger, Tolles & Olson in San Francisco. Bleich clerked for Chief Justice Rehnquist in 1990 and teaches constitutional law at Boalt Hall. Pearlstein clerked for Justice Stevens in 1999. Their work also appears in the San Francisco Bar Association’s magazine, The San Francisco Lawyer.

© 2002 Jeff Bleich & Deborah Pearlstein

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