Eyes on the Supreme Court…and the “invisible justices”

The rulings issued by the Supreme Court of the United States aren’t the only important decisions it makes. So are its choices about which cases to review and which to reject.

Yet those decisions to grant or deny a “writ of certiorari” petition for review usually remain shrouded in mystery—shielded from study and discussion by legal scholars, litigants, historians, advocacy groups, and other outside stakeholders.

While there are compelling rationales in favor of confidentiality, it also means that the Supreme Court enjoys a presumption of anonymity and secrecy that is not accorded to the elected branches of government. This state of affairs has led some to use the term “invisible justices” in describing the issue.

As Prof. Eric Segall explains, how the nation’s highest court operates matters, not just who comprise the bench:

“The decision whether to grant or deny a certiorari petition is one of the most important decisions the Justices have to make. Which cases the Court deems worthy to review may dictate national policy across the spectrum of important social, legal, educational, political, and economic issues.

Yet, although there are instructions concerning the timing and structure of the briefs that need to be submitted, and a few vague considerations the Court may take into account in the process of deciding whether a case is worthy of its attention, there are no written rules or statutes governing how many Justices it takes to hear a case or whether the votes of the individual Justices need to be recorded.

The present informal (but consistent) practice is that it takes four Justices to agree to grant certiorari for a case to be heard. The Justices keep secret who votes to grant the petitions and (almost) never provide reasons for denying a petition to hear a case, although occasionally dissenting justices will write separately to argue that a denied petition should have been granted (which then sometimes prompts a Justice who voted to deny certiorari to respond by explaining why the case should not be heard). Amazingly, to the best of my knowledge, no formal record of the individual votes to grant or deny certiorari is kept by anyone.”

For these reasons, potential reforms to bring more transparency to the Supreme Court should be put on the table—including disclosure of the Justices’ votes and opinions to grant or deny a certiorari petition.

For Prof. Segall’s full series on transparency in the Supreme Court, see Invisible Justices Part I: Cameras in the CourtPart II: The Anonymous Writ of CertiorariPart III: Recusal and Ethics; and Part IV: The Justices’ Papers.