The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justices Thomas, Alito, Gorsuch, and Kavanaugh Are Active on the Cert Docket
Justice Barrett remains the most gun-shy Justice.
Today the Supreme Court denied review in three high profile cases. In each case, Justices Thomas and Alito wrote separately. In two cases, Justice Gorsuch wrote separately. And in one case, Justice Kavanaugh would have granted cert. In all cases, Justice Barrett remained silent.
First, the Court denied cert in Boston Parent Coalition for Academic Excellence Corp v. The School Committee For the City of Boston. This case challenged the affirmative action policies of Boston Public Schools, where there as overt evidence of discrimination against Asian students. The First Circuit, following the Fourth Circuit's lead in Coalition for TJ v. Fairfax County School Board, rejected the Fourteenth Amendment claim because Asian students were "still over-represented."
Justice Gorsuch wrote a statement respecting the denial of cert in the Boston case. Here, Boston had changed its policy, and the plaintiffs had not challenged the new policy. Gorsuch observed:
Strictly speaking, those developments may not moot this case. But, to my mind, they greatly diminish the need for our review.As a result, I concur in the Court's denial of the petition for certiorari.
In other words, the Court has a discretionary docket, and he did not think this case was a good use of discretion.
Justice Alito dissented from the denial of cert, joined by Justice Thomas. He explained that the case was not moot, due to the suit for nominal damages.
Boston later replaced the challenged 2021–2022 admission policy with a new policy that the Coalition does not challenge here. But, unlike respondents, I fail to see how that moots this case. First, the Coalition seeks nominal damages to redress the unconstitutional effects of the 2021–2022 admission policy. See Record 2103; Uzuegbunam v. Preczewski, 592 U. S. 279, 292 (2021).
Alito criticized his colleagues, again, for not addressing post-SFFA "defiance":
We have now twice refused to correct a glaring constitutional error that threatens to perpetuate race-based affirmative action in defiance of Students for Fair Admissions. I would reject root and branch this dangerously distortedview of disparate impact. The Court, however, fails to do so today, so I must respectfully dissent.
Recall that Justices Alito, Thomas, and Gorsuch would have granted the TJ Coalition an emergency injunction back in 2022, and Alito and Thomas (but not Gorsuch) have granted cert in that case in 2024. Justices Kavanaugh and Barrett are silent on this issue. The Court is now content to let these issues fester in the lower courts, as SSFA is ignored.
Second, the Court today denied certiorari in Wilson v. Hawaii. In this case, the Aloha state had a "may issue" carry regime that would violate Bruen. And the defendant was convicted of violating that law. But the Hawaii Supreme Court held that the defendant could not raise the unconstitutionality of the law, because he never applied for a carry license. Justice Thomas, joined by Justice Alito, wrote a statement respecting the denial of cert. They explained that the case came to the Court at an early posture, but this vehicle, or another should be granted in the future:
Although the interlocutory posture of the petition weighs against correcting this error now, I would grant certiorari in an appropriate case to reaffirm that the Second Amendment warrants the same respect as any other constitutional right.
The Hawaii Supreme Court also took time to criticize Bruen:
The Hawaii Supreme Court disagreed. It spent the bulk of its opinion explaining why the Hawaii Constitution does not confer an individual right to bear arms, with analysis that doubled as a critique of this Court's Second Amendment jurisprudence. The court specifically took aim at our focus on original meaning. Bemoaning the policy consequences, the court asserted that an originalist interpretation of the Second Amendment "disables the states' responsibility to protect public safety, reduce gun violence, and safeguard peaceful public movement," by putting firearms restrictions "mostly out of bounds." And, it denigrated the need for public carry in particular, rejecting as un-Hawaiian "a federally-mandated lifestyle that lets citizens walk around with deadly weapons." On the Hawaii Supreme Court's view, a sounder approach to constitutional interpretation would give due regard to the "spirit of Aloha" and would preclude any individual right to bear arms, or at least subject it to "levels of scrutiny and public safety balancing tests." . . .
I think there are some penumbras emanating from the "spirit of Aloha."
Justice Thomas faulted his colleagues for tolerating defiance of Bruen:
The court's contrary path "resist[s] our decisions," Rogers v. Grewal, 590 U. S. ___, ___ (2020) (THOMAS, J., dissenting from denial of certiorari) (slip op.,at 3), and demotes the Second Amendment to a "second class right," McDonald, 561 U. S., at 780 (plurality opinion). This Court cannot tolerate "such blatant defiance" in any constitutional context. Rogers, 590 U. S., at ___ (slip op., at 5).
Justice Gorsuch wrote a separate statement in Wilson v. Hawaii. Gorsuch makes slightly different arguments than did Thomas and Alito. Gorsuch faulted the Hawaii Supreme Court for not analyzing whether the "may issue" regime violated Bruen. Gorsuch also gets into the weeds of the particular Hawaii states that Wilson was charged with violating. Gorsuch also made a Sixth Amendment argument about the state "precluding the presentation of a constitutional defense."
Third, the Court denied cert in Parents Protecting Our Children v. Eau Claire Area School District, Wisconsin. This case challenged the school's policy to encourage students to transition without parental knowledge or consent. The parents raised a Fourteenth Amendment substantive due process claim for the right to make decisions concerning the rearing of their children. The Seventh Circuit panel (Wood, Scudder, St. Eve) rejected this claim on standing grounds.
Justices Alito and Thomas wrote a dissent from the denial of certiorari. Justice Kavanaugh did not join the Alito dissental, but would have granted the petition. Kavanaugh's vote to grant is consistent with some of his questions during the Skrmetti argument. Indeed, I think Justice Kavanaugh is acutely aware of these issues. He has young daughters who attended an elite prep school, and he was the coach of female athletics. He is speaking from experience here.
Alito explains why he would have granted review:
Relying principally on our decision in Clapper v. Amnesty Int'l USA, 568 U. S. 398 (2013), the Seventh Circuit suggested that a parent could not challenge the district's policy unless the parent could show that his or her child is transitioning or considering a transition. 95 F. 4th 501, 505 (2024). But the challenged policy and associated equity training specifically encourage school personnel to keep parents in the dark about the "identities" of their children, especially if the school believes that the parents would not support what the school thinks is appropriate. Thus, the parents' fear that the school district might make decisions for their children without their knowledge and consent is not "speculative." Ibid. (citing Clapper, 568 U. S., at 410). They are merely taking the school district at its word.
Alito also faults the lower courts, as well as his colleagues, for using standing law to avoid controversial issues:
I would grant the petition so that we can address this questionable understanding of Clapper and related standing decisions. I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions. While it is important that federal courts heed the limits of their constitutional authority, it is equally important that they carry out their "virtually unflagging obligation . . . to exercise the jurisdiction given them." Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976).
This charge is a lack of courage. Here, I think Alito is looking right at Gorsuch. Speaking of Justice Gorsuch…
Of course, with three votes to grant, only one more was needed. But Justices Gorsuch and Barrett were silent. Gorsuch's silence is predictable. Last week, I listed the string of LGBT-related cases where Gorsuch did not vote to grant cert: Tingley, Edmo, Grimm, and Kincaid. He was silent in Skrmetti. And now add Eau Claire to that list. Yet, there is a deafening sound to this silence.
Justice Barrett's silence is also quite predictable. She is a standing stickler, and is most likely to find that parties are not injured. But more broadly, she is a cert stickler. Justice Barrett does not seem interested in parental rights here, and apparently did not vote to grant cert on the ACLU's due process petition in Skrmeti. (In my post last week, I erroneously wrote that the Court denied the petition, which in fact remains pending. )
By my best recollection, Barrett has only ever dissented from the denial of cert once. Perhaps with good reason. On any case where Barrett wants to grant review, there will almost certainly be three or four more votes to back her up. But where she wants to sit things out, cert is likely to be denied. Indeed, even if Justice Kavanaugh might be inclined to grant cert, he may not see a fifth vote for reversal, and sits it out.
The Court's docket continues to shrink. Maybe we should blame William Howard Taft for pushing the Court's discretionary docket a century ago, as flagged in Adam Liptak's column today. I still think we should expand the Court's mandatory jurisdiction.
