The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.