Dissents from Cert

June 27, 2012

Yes, it’s the last week in June, the week that the Supreme Court releases their final opinions from the term.  No, as I write this, they have not yet released the Affordable Care Act opinion.

Now that we have that out of the way, I wanted to mention something interesting that happened Monday.  Besides releasing some of their final opinions for the term, the Court also acted on a series of petitions for certiorari, to be taken up next term.  Some interesting cases got picked up, but that still isn’t the thing I want to talk about.

One cert petition was granted, but not so that the court could take up the case next term.  In American Tradition Partnership v. Bullock, 2012 WL 2368660, the Court instead made a summary reversal.  The case concerned a Montana State law barring political contributions by corporations (more information on this law, including historical background, can be found in the Montana State Supreme Court’s decision upholding the law, available at Western Tradition Partnership v. Attorney General, 271 P.3d 1).  The Supreme Court’s per curiam opinion held the law invalid in light of Citizens United v. F.E.C., 130 S.Ct. 876.

Considering the disparagement leveled at the Citizens United decision, I expect the Court’s critics won’t be silent about American Tradition Partnership.  Credit for the first criticism, though, goes to Justice Stephen Breyer, whose dissent actually beats the Court’s opinion for length.

Breyer’s dissent, interestingly, isn’t just from the court’s holding (the reversal), but from the grant of cert itself.  I knew that there were plenty of instances of dissents from Cert denials, (a practice started by Justice Rutledge in Application of Homma, 327 U.S. 759, but famously perfected by Justices Brennan and Marshall in the 1980s), but how many times had a Justice chosen to record his objection to a grant of cert.  I was able to find 70 instances, most of which are summary reversals or summary vacations, along the lines of American Trade Partnership.

These dissents provide a fascinating glimpse behind the curtain of our nations highest (and most famously private) Court, and in a way it’s considerate of Breyer to let us see these internal debates.  The majority, however, would likely not see it this way.

Research References

To determine the first person to dissent from a denial of certiorari, I ran the following search in SCt: petition /s certiorari /s den! & dis(grant!) & da(bef 1950).  Reading through the 29 results was a fairly simple task from there.  I’m only counting results after the adoption of modern cert procedure.

To see some of the other petitions that were granted Monday, try the following search in the Supreme court: Certiorari /s petition /s grant! & da(06/25/2012).

To find prior dissents from cert grants, I ran this search: LE(CERTIORARI /S GRANT! /S PETITION) & DIS(DENY DENIED /S PETITION).