The Supreme Court’s certiorari process is generally a black box. Occasionally, however, Justices issue statements explaining their dissent from or concurrence in the denial of certiorari. Since she joined the Court, Justice Sotomayor has produced more of these statements than any of her colleagues. In this Essay, Robert Yablon considers what Justice Sotomayor’s certiorari-stage writings reveal about her substantive passions and her vision of the Supreme Court’s institutional responsibilities. Nearly all of Justice Sotomayor’s statements decry instances in which the criminal justice system failed to deliver on its promise of ethical and evenhanded justice, whether due to structural defects or individual transgressions on the part of prosecutors or courts. The author suggests that, were the Court to recalibrate its docket along the lines Justice Sotomayor’s writings advocate, the Court could improve the functioning of the legal system as well as its own institutional standing.

Introduction

Before they can decide cases, Supreme Court Justices must decide what cases to decide.1 This selection process is no small undertaking. Each year, the Court receives some 10,000 petitions for a writ of certiorari, and the Justices and their law clerks devote substantial energy to winnowing those petitions down to the eighty or so that receive plenary review.2

Most of this work takes place completely outside the view of the parties, their advocates, and the public. The Justices make their certiorari decisions in closed-door private conferences that they alone attend. In the overwhelming majority of cases, the Court offers neither an explanation for its decision to grant or deny certiorari, nor a tally of the votes for and against review. A one-line order is all that is released.3

For the most part, the outside world does not even know which petitions garner serious attention. At their conferences, the Justices actively consider only those petitions that at least one Justice specifically asks to have placed on the so-called “discuss” list.4 That list, however, is not publicly released. Careful Court-watchers can sometimes infer from the issuance of certain obscure procedural orders that a petition has caught the attention of someone at the Court.5 But even in these instances, it is usually impossible to discern whose interest has been piqued and why.

A handful of times each year, however, a Justice cracks open the black box of the certiorari process and issues an explanatory statement respecting the denial of certiorari. These statements, which run anywhere from one or two paragraphs to many pages, take two primary forms: a dissent from the denial of certiorari or a concurrence in the denial. In a dissent, the author explains why she believes certiorari should have been granted. In a concurrence, the author typically expresses interest in or concern about a lower court’s handling of a particular issue, but then identifies some obstacle to plenary review, such as the petitioner’s failure to have properly preserved the issue below.

These writings offer a fascinating glimpse into the Court’s certiorari discussions and into the thinking of individual Justices. Justices have unfettered discretion to choose whether and when to put pen to paper at the certiorari stage. And the wide range of petitions that comes in the door gives them a chance to focus on topics they otherwise might not have an opportunity to address in a formal judicial opinion. This is especially true for relatively junior Justices. Because writing assignments in merits cases are made by the senior-most member of the majority and the senior-most dissenter, new Justices often end up handling some of the more technical or mundane issues on the Court’s merits docket. Of course, Justices have limited time for extra writing projects, so they must be selective. A Justice’s willingness to take on the additional authorial work of a dissent from or concurrence in the denial of certiorari thus indicates that the views being expressed are strongly held.6

Dissents from and concurrences in the denial of certiorari provide an especially good window into Justice Sotomayor’s early tenure on the Supreme Court. They reveal a Justice who is deeply engaged in the Court’s agenda-setting function and willing to share her perspective with her colleagues, legal professionals, and the public. They also give a sense of her substantive passions and priorities and her views on the institutional role of the Supreme Court in overseeing lower courts and the legal profession.

I. justice sotomayor’s certiorari-stage writings by the numbers

One striking aspect of Justice Sotomayor’s statements respecting the denial of certiorari is their relative frequency. In her first four full Terms on the Court, Justice Sotomayor issued ten such statements—more than any of her colleagues.7 Her closest competitors during that four-year stretch were Justice Scalia and Justice Alito, each of whom issued eight statements. Justice Thomas, with five, was the only other member of the Court to author even half as many. Justice Ginsburg and Justice Breyer each issued four, the Chief Justice three, and Justice Kennedy one. Now in the middle of her fourth Term on the Court, Justice Kagan has yet to issue any statement respecting the denial of certiorari.

These numbers suggest that Justice Sotomayor has taken up the mantle of Justice Stevens, who, prior to his retirement, was the Court’s most frequent author of certiorari-stage writings.8 Justice Stevens was the only one of the Court’s more liberal members to write with regularity, typically issuing more statements respecting the denial of certiorari than those Justices did combined. During his penultimate Term on the Court—a year before Justice Sotomayor’s arrival—he issued five such statements, while Justices Souter, Ginsburg, and Breyer authored only two among them.9 During his final Term—the only Term he and Justice Sotomayor overlapped—he released four statements, while Justice Sotomayor and Justice Ginsburg each issued one.10 In the three Terms following Justice Stevens’s departure, Justice Sotomayor authored nine, while Justices Ginsburg (three), Breyer (four), and Kagan (zero) combined for a total of seven.11

While Justices who refrain from issuing statements respecting the denial of certiorari still may be active participants in the certiorari process, an abundance of statements is an affirmative indication of engagement. Each time Justice Sotomayor felt strongly enough to issue a statement, she almost certainly played a central role in the Court’s deliberations. And these are likely not the only occasions when Justice Sotomayor vigorously advocated for certiorari. Instances in which she may have successfully shepherded a case onto the Court’s docket remain hidden from view, as do instances in which she may have strongly supported granting certiorari but was not sufficiently troubled by the Court’s denial to issue a public statement.

The nature of the cases in which Justice Sotomayor has issued statements provides further evidence of her deep certiorari-stage engagement. All but one of the cases came from the in forma pauperis portion of the Court’s docket.12 These are petitions for certiorari submitted by petitioners who, for reasons of economic hardship, are exempted from the Court’s filing fee and excused from complying with the Court’s usual requirements for the formatting of petitions.13 Though there are exceptions (for instance, a number of the petitions are filed by skilled federal public defenders), the quality of the advocacy in these petitions often is not high. Many are submitted pro se. They are sometimes written out by hand. Even the counseled petitions sometimes show little regard for the norms of Supreme Court advocacy. Numerically speaking, in forma pauperis petitions account for the vast majority of the petitions the Court receives—some seventy-five to eighty percent.14 Yet, in most years, they account for less than twenty percent of the Court’s grants of certiorari.15 Much of this disparity no doubt derives from the failure of most in forma pauperis petitions to present the sort of legal issue that would even arguably warrant Supreme Court review. But the widespread deficiencies of in forma pauperis petitions mean that they are also the petitions in which serious issues can most easily escape notice. It takes a good eye and keen attention to detail to repeatedly pluck needles from the in forma pauperis haystack.

II. justice sotomayor’s substantive and institutional commitments

In terms of substance, Justice Sotomayor has focused her certiorari-stage writing on issues pertaining to the criminal justice system. Every one of her statements addresses a petition for certiorari that presents questions of criminal procedure,16 habeas corpus,17 or the rights of prisoners.18 Other symposium participants are offering perspectives on Justice Sotomayor’s criminal procedure jurisprudence.19 For present purposes, it suffices to observe that the attention Justice Sotomayor has devoted to criminal matters at the certiorari stage identifies this as an area of real substantive passion and one in which she plays an especially active part in shaping the Court’s agenda. Her background as a former prosecutor—Justice Alito is the only one other one on the Court—and as the Court’s only former district court judge makes her a natural for this role. She can speak with the authority of someone who has participated in the day-to-day, on-the-ground functioning of the criminal justice system.

It appears, however, that something more than an affinity for criminal-law issues animates Justice Sotomayor’s certiorari-stage writings. Her statements reveal a Justice who has a distinctive vision of the Court’s institutional responsibilities. The petitions that capture her attention and motivate her to break the Court’s usual certiorari-stage silence are, by and large, ones in which the legal system failed to deliver on the promise of ethical and evenhanded justice, whether due to structural defects or individual transgressions. By directing attention to these cases, Justice Sotomayor’s implicit message is that, when the legal system breaks down, the Supreme Court, as the nation’s court of last resort, has a duty to step in.

Many of Justice Stevens’s statements respecting the denial of certiorari addressed similar issues and themes, which bolsters the view that Justice Sotomayor may have stepped in to fill an institutional gap that opened when Justice Stevens departed. Several members of the Court—particularly Justices Scalia and Alito—regularly produce certiorari-stage writings that highlight instances in which they believe lower courts improperly granted relief to criminal defendants, habeas petitioners, or prisoners.20 In the years leading up to his retirement, Justice Stevens was the only member of the Court who routinely used certiorari-stage writings to direct attention to cases in which relief may have been improperly denied, particularly in capital cases.21 It is now Justice Sotomayor whose statements provide a counterweight to those of her more conservative colleagues.

Justice Sotomayor’s most recent certiorari-stage writing, her dissent from the denial of certiorari in Woodward v. Alabama,22 vividly illustrates her desire for the Court to scrutinize the workings of the justice system and respond to potential structural flaws. The petitioner in Woodward challenged the constitutionality of Alabama’s capital-sentencing scheme. Alabama is one of only a handful of states in which judges may impose a death sentence even when the jury recommends against it, and it is the only state in which judges routinely exercise their override prerogative.23 Justice Sotomayor expressed “deep concerns about whether this practice offends the Sixth and Eighth Amendments.”24 She cited “empirical evidence” that “Alabama judges, who are elected in partisan proceedings,” had “succumbed to electoral pressures” in making their capital sentencing decisions.25 This possibility, she wrote, “casts a cloud of illegitimacy over the criminal justice system” and raises the specter of “potentially arbitrary outcomes.”26 Judges often failed even to offer “a meaningful explanation for the decision to disregard the jury’s verdict.”27 Justice Sotomayor recognized that the Court had previously upheld Alabama’s sentencing scheme, but she believed that, in light of intervening doctrinal and factual developments, “we owe the validity of Alabama’s system a fresh look.”28

In other statements, Justice Sotomayor has highlighted instances of apparent impropriety on the part of government officials and courts. Justice Sotomayor’s statement respecting the denial of certiorari in Calhoun v. United States29is perhaps the most prominent of these writings. The petitioner in that case was convicted of participating in a drug conspiracy following a trial at which a federal prosecutor made racially charged remarks.30 Unfortunately for the petitioner, his attorney failed to object to the prosecutor’s comments and, on appeal, failed to press the argument he advanced in his petition for certiorari.31 In light of those significant procedural roadblocks, Justice Sotomayor “d[id] not disagree with the Court’s decision to deny the petition.”32 She wrote, however, “to dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark. It should not.”33 The prosecutor, she lamented, had “tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation.”34 Justice Sotomayor found it “deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century.”35 Such conduct, she observed, “diminishes the dignity of our criminal justice system and undermines respect for the rule of law.”36 Justice Sotomayor was also “troubl[ed]” by the government’s belated acknowledgement of the prosecutor’s error. On appeal, the government was reluctant to concede that the prosecutor had “crossed the line.”37 And while the Solicitor General ultimately confessed error and admitted that “that the ‘prosecutor’s racial remark was unquestionably improper,’” he did so only after first declining to file a response to the petition for certiorari.38 Justice Sotomayor concluded that she “hope[d] never to see a case like this again.”39

Along similar lines is Justice Sotomayor’s dissent from the denial of certiorari in Pitre v. Cain.40 The petitioner in that case was a Louisiana prisoner who alleged that, after he refused to take his HIV medication, prison officials forced him to do hard labor in 100-degree heat. His repeated requests for lighter duty were denied, even after he was twice rushed to the emergency room.41 He claimed that this treatment constituted cruel and unusual punishment. What drew Justice Sotomayor’s attention was not just the substance of the petitioner’s allegations, but also the cursory and dismissive way the lower courts had handled them. A federal magistrate judge had “sua sponte recommended dismissing [petitioner’s] complaint as ‘frivolous.’”42 The district court adopted the recommendation, and the court of appeals summarily affirmed, stating that “[e]vidence of conscious indifference [to petitioner’s plight] is not presented.”43 Justice Sotomayor found it problematic that these courts had seemingly ignored the requirement that they construe pro sefilings liberally and had faulted the petitioner for failing to include supporting evidence even though the case was only at the pleadings stage.44 Justice Sotomayor believed that the petitioner’s allegations sufficed to state an Eighth Amendment claim, and she could not “comprehend how a court could deem such allegations ‘frivolous.’”45

III. assessing justice sotomayor’s distinctive certiorari priorities

Justice Sotomayor’s pattern of advocating certiorari in cases such as these suggests that she balances the Court’s usual certiorari factors a bit differently than some of her colleagues. A non-exclusive list of reasons for granting certiorari appears in Supreme Court Rule 10. In practice, most cases that end up on the Supreme Court’s merits docket are ones in which a federal court of appeals or state high court has decided a question of federal law “in a way that conflicts with a decision” from another such court.46 Most of the rest are cases that involve no conflict among lower courts but present contentious legal issues of great national significance. Justice Sotomayor no doubt considers the resolution of such cases to be a vital part of the Supreme Court’s work. But she appears more willing than some of her colleagues to invoke Rule 10’s less frequently cited justifications for certiorari. Rule 10 provides that plenary review may be appropriate not only when a case implicates a split of authority or raises one of the major issues of the day, but also when a federal appellate court “has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power,”47 or when a state or federal court “has decided an important federal question in a way that conflicts with relevant decisions of [the Supreme] Court.”48 In recent years, the Court has tended to rely on these grounds mainly when summarily reversing decisions favorable to criminal defendants and habeas petitioners.49 Based on her writings, it seems fair to say that Justice Sotomayor would like to see the Court focus attention not just on cases prosecutors should not have lost, but also on cases they should not have won, at least when it appears that failing to intervene would allow a serious injustice to go uncorrected.

Would the Court do well to recalibrate its docket along the lines Justice Sotomayor seems to favor? Skeptics might trot out the oft-repeated mantra that the Supreme Court “is not a court of error correction” and argue that, given its limited bandwidth, it is more important for the Court to focus on resolving splits of authority and to intervene in only the most high-profile national legal debates.50 But, as just noted, the current Court’s disdain for error correction is selective. In a steady trickle of cases, the Court has been granting certiorari and summarily reversing decisions favorable to criminal defendants and habeas petitioners.51 These rulings send a message to lower courts—sometimes implicitly and sometimes overtly—that relief to criminal defendants, and especially to habeas petitioners, should be granted sparingly.52 Deciding more cases of the sort that Justice Sotomayor has chosen to highlight in her certiorari-stage writings might help to restore a sense of balance. Such review would impress upon lower courts that errors in criminal cases can run in both directions and that relief should not be reflexively denied.

Shifting the Court’s docket along the lines Justice Sotomayor’s writings propose not only would allow the Court to remedy individual injustices and send more balanced signals to lower courts; it also would enable the Court to offer guidance to lawyers and the broader public about how the criminal justice system ought to function and how the individuals at the heart of the system ought to conduct themselves. Over time, such guidance might help to curb instances in which legal institutions and legal professionals fall short of expectations and might boost public confidence in the legal process as well as the Court’s own institutional standing.53 If the Court too often allows structural flaws and individual malfeasance to go uncorrected, such problems may fester and multiply, undermining the public’s faith in the Court and in the justice system as a whole.54

Whether or not Justice Sotomayor ends up persuading her colleagues to take up cases like the ones her certiorari-stage writings address, those writings may themselves produce at least some of the benefits of plenary review. They serve to remind courts and government officials of their professional obligations. They inform attorneys and policymakers about issues that may warrant attention.55 And they assure litigants and the public that one of the country’s most prominent jurists is carefully scrutinizing the petitions that cross her desk in an effort to ensure that justice is done.

Robert Yablon is a senior associate at Orrick, Herrington, & Sutcliffe LLC in Washington, D.C. He clerked for Justice Sotomayor during her first Term on the Supreme Court and for Justice Ginsburg during the preceding Term. The author is grateful to Brian Goldman, Daniel Habib, and Miriam Seifter for their thoughtful comments during the development of this Essay. The author also thanks his co-panelists at the Yale Law Journal Forum’s symposium, Andrew Pincus and Kathleen Sullivan, for their helpful insights, and the Yale Law Journal editors for their excellent editorial work.

Preferred citation: Robert M. Yablon, Justice Sotomayor and the Supreme Court’s Certiorari Process, 123 Yale L.J. F. 551 (2014), http://yalelawjournal.org/forum/justice-sotomayor-and-the-supreme-courts-certiorari-process.