The Supreme Court Justices released the first non-per curiam or related opinion of the 2016 Term today (contained in the Court’s opinions related to orders), although not in the traditional sense.  This opinion came in the form of Justice Sotomayor’s detailed dissent from denial of certiorari in the capital case, Elmore v. Holbrook.  Such dissents are becoming ever more common for Justice Sotomayor.

Dissents from denial are part of a whole species of Supreme Court decision-making that takes place outside of the Court’s plenary review.  What has become known as the Court’s “shadow docket” involves decisions and orders apart from the Court’s main reasoned opinions.  A good starting point for understanding this phenomena is William Baude’s comprehensive look at the Court’s shadow docket for the 2013 Supreme Court Term.

This understudied area of Supreme Court decisions is both easy to grasp on the surface and difficult to comprehend in its entirety.  In terms of function it is simply a mechanism for the Justices to describe why they disagree with the Court not accepting a case for merits review.

The Court is presented with thousands of cert petitions each Term that the Justices decline leaving lower courts’ decisions in place.  Cert decisions are one of the many non-transparent areas of Supreme Court decision-making that are generally not made privy to the public.  The Court’s practice is to grants cert in cases where at least four of the Justices support a cert grant (known as “The Rule of Four”).  We only know any partial composition of cert votes when one or more Justices dissent from denial.

An important question underlying certiorari decisions is whether the Justices are forward thinking.  Stated another way: do the Justices vote on whether or not to hear a case with an outcome on the merits in mind? Depending on how one thinks about this question the reasons behind dissenting from denial of cert differ quite dramatically.

One way to uncover some understanding of this practice is through an analysis of who engages in this practice.  This post looks at these dissents for the 2010 through 2015 Supreme Court Terms.  The total number of these across this period is 43.  By Term this breaks down to 8, 4, 3, 5, 8, and 15 starting with the 2010 Term.

There are two ways to look at which Justices engage in this practice.  The main output is crafted by the author of the dissent, although oftentimes Justices join these dissents in the same manner as they do for dissents from the Court’s traditional opinions.

The chart below shows the Justices authoring these dissents.

Justices Roberts, Kagan and Kennedy authored none of these dissents and Justice Ginsburg only authored one. The bulk of the dissents come from the other Justices with Justice Thomas leading the way authoring 14 such dissents for this period.  After Justice Thomas come Justice Sotomayor with eight (five of which were from 2010-2012) and Justice Alito with eight (six of which come from 2013-2015).  Justice Breyer had only two prior to the 2015 Term and four in 2015.

These trends are even more pronounced when we look at the combination of dissents that the Justices wrote and joined for 2010 through 2015.

Justice Thomas’ count clearly rises over this period with his greatest combined number, nine, coming in 2015.  Justices Thomas and Sotomayor are also the only Justices that have at least one dissent from denial for each Term in this set. Additionally, Justices Thomas, Alito, and Breyer all have clear upswings in their charts.  Is this due to frustration with the rest of the Justices’ choice of case selection? Is it to put certain cert denials in the spotlight?

Some additional clarity is shed by examining the issues at the heart of the denied petitions.  Five of Justice Breyer’s six authored dissents from denial for this period and all four from 2015 came in death penalty cases. A majority of Justice Sotomayor’s dissents come from death penalty cases as well and all stemmed from criminal matters. As the Court dealt with several capital cases in 2015 and has several more on the 2016, perhaps these Justices that routinely vote against the death penalty seek greater reform on this issue, are attempting to spotlight specific cases they feel were unjustly decided by the lower courts, or are conveying alternative ways for lawyers to frame these such issues in their arguments.

Justices Alito and Thomas’ dissents are from cases composed of a more varied set of issues ranging from First Amendment and discrimination concerns to criminal matters in the form of habeas corpus relief.  Absent from their dissents are any capital cases.  While it is difficult to read too much into this lack of a clear pattern, these Justices’ general trends towards more such dissents is notable.  The next Justice confirmed to the Court and the effect that this Justice has on the Court’s choice of cases will inevitably have a deep and prolonged impact on this form of behavior from all Justices, as the new ninth Justice will have a large say in what cases the Court hears as well as in the Court’s merits decisions.

On Twitter: @AdamSFeldman

Data compiled by: @SamuelPMorse