The Volokh Conspiracy

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The Occasional Left-Right Sotomayor-Gorsuch Alliance on Liberty-Related Cert. Opinions

|The Volokh Conspiracy |


The Supreme Court is asked to review several thousand cases each year. It agrees to review fewer than 1% of them. It takes four votes of the nine to decide to review a case. (The grant of review is generally called a "grant of certiorari" or just a "cert. grant.")

Sometimes Justices write opinions dissenting from a denial of cert., arguing that the Court should have taken the case. And sometimes they write opinions respecting the denial of cert., explaining why it made sense to deny review in this case but noting that the Court ought to consider the question in future cases.

Such opinions are often solo opinions, and are sometimes signed by two or three Justices from the liberal or conservative wings of the Court. But it turns out that Justices Sotomayor and Gorsuch have also jointly filed nine such opinions, eight just for themselves and one for themselves plus Justice Kagan. All of them, it seems to me, at least suggest that the Court ought to move the law in a somewhat more government-restrictive direction (loosely speaking); most of them specifically point to somewhat broader constitutional rights protections. Prompted by two such opinions earlier this month, I thought I'd note the cases and the issues they involved.

  1. O'Donnell v. City of Chicago, Illinois (Oct. 19, 2026): "whether, and under what circumstances, exercises of the State's police power are immune to takings claims," specifically as to uncompensated forfeiture of vehicles for drivers' "fail[ure] to pay" parking tickets.
  2. Herrera-Salazar v. United States (Oct. 13, 2026): whether a defendant's being punished under criminal immigration statutes "for being found in the United States a second time," when a supervised release condition barred him from "leav[ing] the Eastern District of Oklahoma" was proper as a matter of substantive federal criminal law, and whether it violated the Double Jeopardy Clause.
  3. Gonzalez v. United States (2025): "whether and to what extent the Fourth Amendment" forbids warrantless arrests for misdemeanors that took place outside the presence of the arresting officer.
  4. Baker v. City of McKinney (2024): "whether the Takings Clause requires compensation when the government damages private property pursuant to its police power" in a stand-off with a fugitive.
  5. ACLU v. U.S. (2021): whether there is a "right of public access" (even if limited) to opinions of the Foreign Intelligence Surveillance Court.
  6. Longoria v. U.S. (2021): whether and when the government may decline to ask the court for a sentencing reduction under a guideline encouraging defendants to timely notify prosecutors of their intent to plead guilty.
  7. Bovat v. Vermont (2020): whether game wardens' "initial visit and search" of Bovat's property (which involved "linger[ing]" for fifteen minutes and "peering" through a garage window to spot evidence) violated the Fourth Amendment (Justice Kagan also joined the opinion).
  8. Hester v. U.S. (2019): whether "a jury [must] find all the facts needed to justify a restitution order" under the Sixth Amendment.
  9. Stuart v. Alabama (2018): whether the government violated the Sixth Amendment by "deny[ing] Ms. Stuart the chance to confront the witness who supplied a foundational piece of evidence in her conviction" (a blood-alcohol test on which another witness relied).

Thanks to my research assistant, Robert Muñiz, for preparing the list.

Eugene Volokh is the Thomas M. Siebel Senior Fellow at the Hoover Institution at Stanford, and the Gary T. Schwartz Distinguished Professor of Law Emeritus and Distinguished Research Professor at UCLA School of Law. Naturally, his posts here (like the opinions of the other bloggers) are his own, and not endorsed by any institution. He is also the co-host of the Free Speech Unmuted podcast.