U.S. Supreme Court

SCOTUS justices' opinions regarding cert denials stoke partisan divide, op-ed contends

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The U.S. Supreme Court as composed Oct. 27, 2020, to present. Photo by Fred Schilling via the Supreme Court website.

Opinions regarding cert denials by U.S. Supreme Court justices are “rife with problems and should be largely abandoned,” according to a recent op-ed in the New York Times by a professor at Pepperdine University’s Caruso School of Law.

Constitutional law professor Barry P. McDonald said opinions regarding cert denials typically object to the way that the lower court applied the law or urge a revision in the law. They have no legal effect and are often used to promote justices’ personal agendas.

“Conservative justices frequently issue them to complain about how the law was applied in hot-button cases to either disfavor free speech, free religion or gun rights or to improperly favor abortion or LGBTQ rights,” McDonald wrote. “Liberal justices just as frequently issue them to complain about how death penalty or other criminal justice matters were handled.”

Justices who unnecessarily issue these opinions stoke partisan divides at a time the public “is losing confidence in the Supreme Court as an apolitical dispenser of equal justice,” McDonald said.

McDonald also finds the practice of issuing cert-denial opinions to be “legally objectionable” because justices have a limited role as a referee in legal disputes.

“When a justice issues an opinion in connection with a dispute that the court has expressly declined to decide, the justice is acting outside this narrow constitutional mandate and using his or her position to influence social issues in just the way the framers thought should be left to the people and their elected representatives to resolve,” McDonald said.

McDonald also criticized cert-denial opinions that “prejudge legal questions in ways that create serious impartiality problems in cases the court later accepts for review.”

He also noted that some lower courts have considered cert-denial opinions to be persuasive authority, even though the viewpoint expressed could be “at direct odds with the majority of justices.”

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