Defensive Denials

A practice associated with the decision to grant or deny certiorari, defensive denials are votes by individual justices who believe that the lower court was probably wrong but who believe as well that a majority of the Supreme Court is unlikely to reverse the lower court. A justice votes to deny certiorari as a defense against the possibility that the lower court's erroneous decision will be affirmed and become a precedent from the Court itself.

Commentators agree that defensive denials are a relatively small proportion of the votes taken on petitions for review, but that they typically occur in the subset of cases where ideological concerns are prominent. Yet, some cases are so important that justices will vote to grant review even if they are uncertain about the likely outcome, and indeed even if they believe that their views are unlikely to prevail.

Defensive denials are particularly important in periods when the Court is in transition from domination by one overarching perspective on the law to domination by another. Defensive denials are unnecessary when one ideology is largely unchallenged on the Court, because the outcome on the merits is not uncertain. During transitional periods, justices associated with the older ideology would like to correct erroneous lower court decisions, but are not confident that they will be able to prevail on the merits. Justices associated with the newer ideology may be similarly uncertain about what would happen if review were granted. As a result, sometimes both sides cast defensive votes against review.

Defensive denials became a prominent part of judicial strategy as the Burger and Rehnquist Courts gradually displaced the Warren Court. Holdover justices from the Warren Court began to vote against granting review in cases where, earlier, they would have wanted the Court to review the lower court decision. Information on the certiorari practice of the later Rehnquist Court is sparse, but impressionistic evidence suggests that defensive denials became less common.

Bibliography

• H. W. Perry, Deciding to Decide: Agenda Setting in the United States Supreme Court (1994)

— Mark V. Tushnet