More Speculation about the Cert Denial in Small v. Memphis Light, Gas & Water

Did Thomas (and Barrett) decline to dissent because of vehicle problems?


On Tuesday, I wrote about the Court's denial of cert in Small v. Memphis Light, Gas & Water. This petition asked the Court to overrule TWA v. Hardison. Justice Gorsuch, joined by Justice Alito, dissented from the denial of certiorari. Justice Thomas, who previously wrote separately on this issue in Patterson v. Walgreen, did not join the dissental. Justice Barrett, who has not yet weighed in on this issue, was silent.

In my post, I engaged in some SCOTUS Kreminology. I speculated that Barrett–perhaps owing to stare decisis–is unwilling to revisit this four-decade old precedent. And Justice Thomas declined to join the dissent to give Justice Barrett cover. If there were three dissenters, it would be obvious that Barrett declined to be the fourth. But if Thomas did not join, then it is tougher to pin the denial on ACB.

After I wrote the post, a colleague told me that my position was "clever," but the more likely explanation was that Small had vehicle problems. Specifically, it wasn't clear the issue was preserved. Maybe Thomas, and by extension Barrett, were simply waiting for a better vehicle to come along.

Linda Greenhouse dedicated her latest column to this cert denial. She also seems to adopt the vehicle explanation.

One of those three [from Walgreen], Justice Thomas did not join this week's dissent. Neither did the court's other conservatives, Chief Justice Roberts and Justices Brett Kavanaugh and Amy Coney Barrett. Perhaps the obvious impatience of Justices Alito and Gorsuch, their eagerness to depart from the court's usual practice in order to get their hands on a precedent they don't like, was a step too far even for colleagues who most likely agree with them on the merits of the issue. (Without comment, the court this week also denied a second case on the same issue, an appeal from the United States Court of Appeals for the 11th Circuit, Dalberiste v. GLE Associates. The Hardison issue wasn't cleanly raised in that case, either.)

Greenhouse's theory is entirely plausible, and very well may be right. But I am skeptical. And my skepticism finds some support in how Greenhouse describes this aspect of the shadow docket. She writes:

Publishing a dissent of this sort is a kind of Supreme Court performance art. Dissenting justices want to set down a marker to identify an issue and solicit future attempts to garner the four votes required to accept a case. Chief Justice William Rehnquist disliked these dissents, viewing them as akin to washing the court's linen in public. The practice, common under his predecessor Chief Justice Warren Burger, gradually all but died away. Under his successor, Chief Justice John Roberts, it has come roaring back.

I think the "performance art" label is a bit hyperbolic, but I agree with her general gist. Statements regarding the denial of cert perform an important signaling function. They tell litigants what kind of cases the Justices want to review. And these statements signal frustration at other Justices who are unwilling to grant at the present moment. Given the Court's discretionary docket, this sort of signaling is inevitable. And this signaling need not be limited to the shadow docket. Justice Thomas will often write that he would revisit an issue in an "appropriate case." And he will repeat his willingness over and over again. Look no further than his string of dissents in Second Amendment cases. Thomas's persistent willingness to reconsider precedent gives me pause about the Greenhouse theory.

If Thomas identified vehicle issues, I suspect he would have been willing to join an opinion concurring in the denial of certiorari, like in Walgreen. That statement would have flagged the problems with Hardison, and suggested "in an appropriate case," the Court should revisit that precedent. If Thomas was on board with such a statement, I have no doubt that Alito and Gorsuch could have easily changed the dissent to a concurrence. That join would have had the same effect as the Small dissent, but with three justices instead of two. However, that sort of concurrence would have put Barrett in a tougher spot. She could no longer demure because she saw vehicle problems. A statement concurring in the denial of cert is purely an act of signaling. And placing a fourth vote on statement is a green light for a future cert grant.

But that option did not happen. There was not a compromise to have another three-Justice statement concerning the denial of cert. There would not be a Walgreen redux. And why did that compromise not happen? I do not think it is because Thomas was unwilling to repeat his willingness to revisit Hardison in an "appropriate case." Another theory was the one I raised initially: Thomas stayed silent to avoid putting boxing in Barrett. As a result, we got a two-Justice dissent. Indeed, the dissent references potential vehicle problems. It is entirely possible that the statement began as a concurrence, but was change to a dissent when Thomas, and/or Barrett would no go along. This two-Justice statement signals at a fracture on the Court.

How, then, do we understand Barrett's position. Option A: she does not want to revisit Hardison, at least not now. Option B: she does not want to engage in such "performance art" through dissents and concurrences. I do not yet have a big enough sample size to make an informed observation about Barrett's views on separate shadow docket writings. Kavanaugh wrote a statement respecting the denial of cert in a non-delegation doctrine case, or what Ross Douthat called the "comforting blandness of administrative law." Kavanaugh's failure to join the statement in Walgreens and Small hints he is not willing to revisit Hardison. I am still not certain about Barrett.

NEXT: Today in Supreme Court History: April 8, 1952

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  1. “I think the “performance art” label is a bit hyperbolic”

    Kettle, meet pot.

  2. Shouldn’t it be, “She could no longer demur because she saw vehicle problems,” as opposed to “She could no longer demure”?

  3. I do, btw, think it is kinda stupid and representative of some anti-religion bias that sex and race are read incredibly expansively but religion is read in such a limited fashion.

    However, that being said, do conservatives really want expansive readings of either clauses? Do conservatives really want to force all businesses to observe the sabbath, serve vegetarian food in case someone is Jain, and obey a series of random rules even if it does harm to the overall business simply because someone requests it?

    Isn’t that exactly the sort of stupid rules employers have to comply with that conservatives (correctly imo) object to? Accommodating is one thing, but forced accommodations when such does harm to the overall business? Even then? And, to bring up the question the court tried to avoid, what exactly is a religion anyhow? Could it be any belief system? Should everything be accommodated then?

    1. It’s one thing to say the government has to comply and make accomidations, and to hence overrule Employment Division vs Smith. Sure, because the government has the power to force people to do anything and therefore is limited by the free exercise clause.

      But employers? You can leave your job anytime, and there already are de minimus protections, and the power only applys to the workspace. If an employer can fire you because you go to church on Sunday, yeah thats problematic. But they can’t under that standard. So is this really necessary?

      1. I’m gonna be really cynical and say “gays”.

        Yes, I understand that’s reductive. But it’s true. Yes, conservatives are bothered by regulations on business that require accommodations. But for whatever reason, a lot of conservatives really can’t stand the idea that people who have religious objections to homosexuality might have to do business with gay people. This bothers A LOT more conservatives than who were ever persuaded by the free association argument against race discrimination laws.

        My guess is, I think a lot of conservatives, whether they admit or not, think that there is some value in making life miserable for gays for the purpose of either dissuading men from being gay or at least forcing them back into the closet. You can see the same dynamic in hate crime laws- yes, conservatives were never great fans of them, but it was only when sexual orientation was proposed to be added that they really screamed. The threat of anti-gay violence deterred homosexuality or forced people back into the closet. Conservatives didn’t want to single it out and ban it.

        So yes, this is one of the many issues where conservatives’ homophobia really pilots the ship. Even many conservatives who express nominal support for gay rights seem to have enormous sympathy for people who assert religiously-justified anti-gay bigotry. These bigots are at the very least their allies, and the conservative legislative project, in 2021, is to maintain levers of private power to force gays to change.

  4. Vehicle problems? I thought it was odd that two justices were both having trouble driving into court to register their dissent. Don’t they have fax machines?

    1. This points to another term that seems counterintuitive to the non-Supreme-Court specialist: “facially invalid.”

      Josh, maybe you can do a post on “weird language litigators use”?

  5. This is a lot of (electronic) ink for an issue that can and should be sliced into irrelevance by Occam’s Razor.

  6. After I wrote the post, a colleague told me that my position was “clever,”

    Did you happen to see this “colleague” in your bathroom mirror in the morning while you were brushing your teeth?

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