The Supreme Court wields significant power in setting its agenda. So to understand the state of the court, we must take stock of the appeals the court declines to review — usually without explanation — and likewise we must examine the rarer instances in which justices either explain why they don’t take certain cases or they dissent from their colleagues’ refusal to consider what they believe to be important issues.
With that in mind, two statements from opposite ideological ends of the court Tuesday morning provide an illuminating snapshot, as each features Democratic or Republican appointees describing very different things as “tragic.”
Both instances appeared on the court’s order list, a routine document containing the latest action in pending appeals, mostly consisting of the court rejecting petitions without explanation. It takes four justices to grant review, and the court only grants review in a relative handful of the thousands of petitions they receive annually. The two instances in question are those rarer examples of justices sharing their thoughts with the public in connection with denials.
The first came in the capital case of Stacey Humphreys, whose petition the court denied. Justice Sonia Sotomayor, who has long spoken out about issues with the death penalty and criminal justice more broadly, penned a dissent joined by her two fellow Democratic-appointed colleagues, Justices Elena Kagan and Ketanji Brown Jackson. She recounted how Humphreys was convicted in 2007 by a Georgia jury of murder and robbery and sentenced to death, but only after one of the jurors “misleadingly omitted critical details of her own experience as a victim of a similar crime and then bullied the other jurors into voting for death based on that prior experience.”
Lamenting her colleagues’ refusal to step in, Sotomayor wrote, “Tragically, the Court denies review instead, allowing a death sentence tainted by a single juror’s extraordinary misconduct to stand.”
The second instance came from three justices who have been the most skeptical of claims from death row: Justices Samuel Alito, Clarence Thomas and Neil Gorsuch. It’s unsurprising that none of them felt compelled to provide a fourth vote for review in the Humphreys case. They spoke out in a case involving parental rights in the context of schools supporting students’ gender transitions without parental knowledge or consent.
Notably, Alito’s statement for those three Republican appointees wasn’t a dissent. He wrote that he agreed with the denial for procedural reasons in the appeal from Colorado parents. But he went on to say he remained “concerned” that courts are tempted to avoid the issue. He wrote that the parents who brought the rejected petition said that “nearly 6,000 public schools have policies” that “purposefully interfere with parents’ access to critical information about their children’s gender-identity choices and school personnel’s involvement in and influence on those choices.” Alito concluded his statement, saying, “The troubling — and tragic — allegations in this case underscore the ‘great and growing national importance’ of the question that these parent petitioners present.” So, while that’s only the published view of three justices — one short of the four needed to grant review in a future case — it encourages parents to keep trying to bring the issue to the justices; it won’t be surprising if they succeed on the court with six Republican appointees. The denial in the capital case, on the other hand, reinforces the lack of high court support for such criminal appeals. Those petitions will continue to come to the court not out of any encouragement but of necessity. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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