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Meaningful Statements of Rejection?

By Michael Gentithes

Meaningful statement of rejection?

What does it mean when the Supreme Court declines to hear a case? Seasoned observers might advise against reading into such decisions, but many members of the public read such decisions as an expression, even preliminarily, of the Court’s views on the merits of the case. Those judicial tea leaves can be confounding, especially when the Court’s decision is not accompanied by any explanation. But on rare occasions, the Justices will issue brief statements of their thoughts on the case they have decided not to hear. Though one might assume that such statements clarify the Court’s true intentions, often they can be just as mystifying as the thunderous silence of a denial of certiorari. Two recent cases demonstrate that when the Court seeks to offer clarity when denying review, it can often have confusing or even counter-productive results.

In October, the U.S. Supreme Court denied certiorari in Bovat v. Vermont, a case of little note except perhaps to criminal procedure enthusiasts.[1] The case concerned officers who approached a suspect’s home believing he had violated deer hunting regulations. The officers proceeded past the front door towards the suspect’s detached garage, peered in the window, and spotted apparent evidence of the crime.[2] The Vermont Supreme Court suggested this search was permissible under the “plain view”doctrine—officers need not shield their eyes to criminal activity they observe from an area they are legally entitled to access, after all.[3] The Vermont Supreme Court claimed that driveways are only “semiprivate areas,” not the kind of “curtilage” to a home that receives greater protection under Supreme Court precedents like Florida v. Jardines.[4]

The Supreme Court denied certiorari in Bovat, but not without a detailed statement from Justices Gorsuch, joined by Justices Sotomayor and Kagan, respecting the denial. In the statement, Gorsuch explained the flawed reasoning of the Vermont Supreme Court that would allow “meandering searches” on citizens’ property.[5] But Gorsuch also acknowledged that the Court had good reason to “let this case go,” given the lack of evidence that many other state or federal courts had similarly misunderstood or misapplied Jardines.[6] Gorsuch felt compelled to write a statement, though, in order to “highlight” the error and “ensure it does not recur,” even if Bovat was just a “stray mistake.”[7]

What should observers, and the Vermont Supreme Court, take from this statement? Some members of the Court seemed to strongly disagree with its reasoning, but even they did not have enough conviction about the apparent error to deem the case worthy of review. Though the Court issued a verbal slap on the wrist, nothing compelled the Vermont Supreme Court to change its interpretation of driveways as non-curtilage that can be subject to extended police exploration without a warrant. And certainly nothing compelled the Court to revisit the results of the petitoner’s case. One might argue that the Court’s statement, far from establishing that the Vermont Supreme Court was in the wrong, actually encouraged it to continue its practice, at least until enough other courts joined its interpretation that the Supreme Court would be willing to hear an appeal to resolve any split in interpretation.

Less detailed statements by the Court upon a decision to decline review can be similarly counter-productive. Consider the Court’s approach in the much higher profile case of Texas v. Pennsylvania. The case did not arise through the usual vehicle of a petition for certiorari; Texas sought leave to file a lawsuit directly in the Supreme Court, relying on the court’s original jurisdiction to resolve interstate disputes. Texas claimed that unconstitutional irregularities in the 2020 election caused it significant damage, including a lack of clarity over the election’s winner.[8] The filing was panned by legal experts and many political actors alike, with Pennsylvania’s Attorney General Josh Shapiro claiming it was a “seditious abuse of the judicial process.”[9]

Despite the heated rhetoric and national attention, the Court rather quietly denied the State of Texas leave to file its complaint. The Court’s order stated simply that the “complaint is denied for lack of standing” because Texas had “not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”[10] 

However, Justice Alito, joined by Justice Thomas, added a short statement that seemed to give hope to the case’s supporters. Alito contended that the Court lacked “discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction,” and thus added that he “would therefore grant the motion to file the bill of complaint but would not grant other relief,” all while claiming to “express no view on any other issue.”[11]

The effect of Alito’s subtle statement was to give hope to many fervent believers in the election fraud hoax. Conservative commentators, with President Trump’s support, touted that two Justices would have allowed the lawsuit to proceed, and that the remainder of the Court simply lacked the “courage” to hear the case on the merits.[12] Alito’s academic position, announced cryptically in the Court’s order, was useful fodder for further conspiracy theories.[13]

In the end, neither Alito’s subtle approach nor Gorsuch’s broader explanation was effective in conveying the Court’s intentions. Justice Gorsuch’s statement was a fuller explanation of the reasons for denying review to a case it plainly viewed as meritorious. Yet Gorsuch could only speculate as to why a majority of the Court would not grant review, and his words seemed to give the Vermont Supreme Court a free pass to continue pressing its understanding of the plain view doctrine and cases like Jardines. Justice Alito’s statement was subtler and perhaps even more confusing. While it adheres to Alito’s long-held academic belief that the Court must accept cases that properly invoke its original jurisdiction,[14] doing so only fueled the flames of conspiracy theorists who suggested that their arguments were not universally rejected by the Court, giving energy to Donald Trump’s supporters to press on with their efforts longer than they might have otherwise.

The Court has long exercised restraint in issuing explanations for its rejection of a case. I’ve argued in the past that the Justices’ statements in dissent or dicta suggesting a detailed structure of arguments they would like to see in a future appeal are dangerous.[15] Perhaps cryptic messages of the Justices’ views in statements accompanying a refusal to review a case are similarly dangerous. Anything short of a full explanation of the reasoning of all Justices can be deceptive, with negative consequences both large and small. The most meaningful statement of rejection may be the simplest one possible.

[1] Bovat v. Vermont, 592 U.S. ___ (2000), https://www.supremecourt.gov/opinions/20pdf/19-1301_5iel.pdf.

[2] Bovat v. Vermont, 592 U.S. ___ (2000), https://www.supremecourt.gov/opinions/20pdf/19-1301_5iel.pdf.

[3] Bovat v. Vermont, 592 U.S. ___ (2000), https://www.supremecourt.gov/opinions/20pdf/19-1301_5iel.pdf.

[4] Bovat v. Vermont, 592 U.S. ___ (2000), https://www.supremecourt.gov/opinions/20pdf/19-1301_5iel.pdf; 569 U.S. 1 (2013).

[5] Bovat v. Vermont, 592 U.S. ___ (2000), https://www.supremecourt.gov/opinions/20pdf/19-1301_5iel.pdf.

[6] Bovat v. Vermont, 592 U.S. ___ (2000), https://www.supremecourt.gov/opinions/20pdf/19-1301_5iel.pdf.

[7] Bovat v. Vermont, 592 U.S. ___ (2000), https://www.supremecourt.gov/opinions/20pdf/19-1301_5iel.pdf.

[8] Amy Howe, Justices throw out Texas lawsuit that sought to block election outcome, SCOTUSblog, Dec. 11, 2020, https://www.scotusblog.com/2020/12/justices-throw-out-texas-lawsuit-that-sought-to-block-election-outcome/.

[9] Amy Howe, Justices throw out Texas lawsuit that sought to block election outcome, SCOTUSblog, Dec. 11, 2020, https://www.scotusblog.com/2020/12/justices-throw-out-texas-lawsuit-that-sought-to-block-election-outcome/.

[10] READ: Supreme Court order on Texas election case, CNN.com, Dec 11, 2020, https://www.cnn.com/2020/12/11/politics/supreme-court-order-texas-election-case/index.html.

[11] READ: Supreme Court order on Texas election case, CNN.com, Dec 11, 2020, https://www.cnn.com/2020/12/11/politics/supreme-court-order-texas-election-case/index.html.

[12] Josh Blackmun, Making Sense of Texas v. Pennsylvania, The Volokh Conspiracy, Dec. 12, 2020, https://reason.com/volokh/2020/12/12/making-sense-of-texas-v-pennsylvania/ (quoting Sean Hannity and Donald Trump).

[13] Mark Sanger, “Standing” – if a State has no standing in the US Supreme Court, who does?, wsicweb.com, Dec. 13, 2020, https://www.wsicweb.com/wsicnews/standing-if-a-state-has-no-standing-in-the-us-supreme-court-who-does/ (“If you are a true thinker like Justice Alito and Justice Thomas, you are asking, “If a state has no ‘standing’ to bring a suit about another state’s potential false elections, who does?’”).

[14] READ: Supreme Court order on Texas election case, CNN.com, Dec 11, 2020, https://www.cnn.com/2020/12/11/politics/supreme-court-order-texas-election-case/index.html.

[15] See Michael Gentithes, Check the Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339,  (2017)