Federal Courts and Nominations

Cut by the Supreme Court

When the justices denied these cases, justice was underserved.


The new Supreme Court term doesn’t officially start until the first Monday in October. But that doesn’t mean the justices are still on vacation. On Monday, Sept. 29, the justices will meet in what is known as the “Long Conference” to consider thousands of requests to hear cases that have come in since June. Shortly thereafter, we’ll find out which cases will make the cut and be heard this term. It’s a good reminder: Although Supreme Court watchers tend to focus on the cases the court decides each term, the court spends a good deal of its time deciding which cases it won’t decide. Each year, the court is asked to hear more than 10,000 cases. And each year the court holds oral argument and issues written decisions in less than 1 percent of those cases.


Why does the court take the cases that it does? We can’t know for sure. For an institution often criticized for its lack of transparency, its decisions about which cases to decide are among its least transparent. Still, we can tell a lot about what the court cares about—and what it doesn’t. Last year the cases the court didn’t care about included several with significant implications for workers’ overtime pay, the constitutional rights of criminal defendants, the victims of racial harassment, and the freedom of the press. It’s useful to consider whether that matters and why.


The court didn’t always have the power to avoid the cases it didn’t want to hear. Until 1925, the Supreme Court was required to hear almost every case that arrived on its doorstep. But that year Congress passed a law that gave the court much more control over its docket. And how does the court decide which petitions to grant? That’s a loaded question (law professors and political scientists have spilled a lot of ink trying to figure that out), but on a mechanical level, it’s pretty straightforward. Unless four justices vote to hear a case, the request will be denied, most often with no explanation at all. (Very occasionally, a justice will issue a statement respecting a denial that offers some insight into the court’s reasoning.)


The court could be hearing more cases. As John Roberts noted at his confirmation hearing to become chief justice, the court was then hearing “about half the number of cases [it] did 25 years ago.” And since he became Chief Justice Roberts, the number hasn’t gone up. Last term, the court issued only 67 signed opinions (apparently the second lowest number of signed opinions since the Civil War). Many of these opinions were hugely consequential, affecting the law in areas from campaign finance to religion to race. But the court decided not to decide many other consequential cases, as well, thereby passing up the opportunity to weigh in on important issues that merit its attention. Here are some of the cases the court should have granted last year.


Right to jury trial


Remember the classic film Ten Angry Men? Of course not, because it’s Twelve Angry Men. But not in Florida, which allows juries of less than 12. The movie wouldn’t have worked in Louisiana or Oregon either, where juries can convict even if not all members agree that the defendant is guilty. Forty years ago, the Supreme Court said the Sixth Amendment’s right to a jury trial permits those practices. Since then, the court has repudiated the reasoning and result of those old decisions; it has repeatedly said in nonbinding statements (what lawyers call “dicta”) that conviction requires the unanimous vote of 12 of the defendant’s peers. Yet it decided not to hear two crucial cases—Jackson v. Louisiana and Irving v. Florida—that would have allowed it to overrule those conflicting precedents. As a result, people will end up spending their lives in prison even though they weren’t convicted by a unanimous vote of a 12-member jury. It’s one thing to think that your rights have been violated; it’s another thing to have the Supreme Court essentially tell you that they have been, but that the court still won’t do anything about it.


Life sentences for juvenile offenders


Two years ago, the Supreme Court held that juvenile homicide offenders cannot be subject to mandatory sentences of life in prison without the possibility of parole. As the court has repeatedly recognized, children are fundamentally different than adults. But in some states children are being treated as if they’re not different, simply because they were sentenced before the court’s decisions from two years ago were announced. Other courts disagree. Yet the court decided not to hear Cunningham v. Pennsylvania, and so in some states, juvenile offenders will continue to serve mandatory life sentences that the court has already said violate the Eighth Amendment. The court might change its mind, but in the meantime, young men and women are sitting in jail thinking that they’ll never get out and potentially being denied the opportunity to take classes and otherwise better themselves for when they do.


Right to confront witnesses at trial


If you’ve ever watched CSI, you’ve seen the prosecution use an autopsy report to prove homicide charges. This isn’t just the stuff of television procedurals; it’s the stuff of real criminal trials, and it’s something that happens all the time. But unlike on television, those autopsy reports aren’t infallible. Indeed, there’s evidence that autopsy procedures are not nearly as reliable as you’d think. You’d think the place to reveal problems with an autopsy report would be at trial, where the defendant’s lawyer could ask the person who prepared the report lots of questions to probe any weaknesses or problems. Unfortunately, you’d be wrong, at least in many states. Right now courts are in disagreement about whether the Sixth Amendment—which gives criminal defendants the right to confront witnesses who testify against them at trial—requires the pathologist who actually prepared the report to testify at trial, or whether someone else from her lab can instead. The court could have resolved that conflict and protected this Sixth Amendment right by hearing Medina v. Arizona. Instead, unless the court takes up another case raising the issue, defendants will receive differing levels of constitutional protection depending on the state in which they’re prosecuted.


Protections for overtime pay


Supreme Court justices may not have to worry about getting overtime pay to which they’re entitled, but many Americans do. And many Americans know how difficult it can be to get all of the pay and benefits that their employer owes them. It should be enough just to do the job, but often it isn’t. And that’s why everyone should empathize with the plaintiff in White v. Baptist Memorial Health Care Corp. In that case, even though the plaintiff let her bosses know that she was working through her breaks, she wasn’t paid for that work. And according to the lower court that heard her case, that was fine; her employer didn’t need to pay her. It wasn’t enough that she did the work, and it wasn’t enough that she told her bosses about the work. She also needed to make clear to them that she wasn’t getting paid for it. It shouldn’t be that hard to get paid for hard work. But because the Supreme Court decided not to hear this case, it now will be for some people.


Race discrimination in commercial transactions


Imagine you are out shopping for Christmas presents with your kids, and the sales clerk starts insulting you and using racial slurs. There’s a law that should prevent that. On the books for nearly 150 years, Section 1981 is an important civil rights statute that prohibits racial discrimination in the making of private contracts. It’s why a restaurant can’t refuse to serve someone because of their race. But according to many courts, a store or restaurant can subject someone to racial harassment, so long as they’re still willing to serve them. In Hammond v. Kmart Corporation, the plaintiff alleged that her rights were violated because she was the subject of “insulting racial slurs and comments” while buying Christmas presents at Kmart. (Among other things, the sales clerk told the plaintiff, who is black, that the clerk had to move out of the neighborhood next to the plaintiff’s because “porch monkeys” lived there.) The lower courts denied the plaintiff’s claim because the sales clerk’s insulting comments didn’t actually prevent the plaintiff from making her purchases. The court passed on the opportunity to take the case and say that was wrong, so in 20 states, it remains completely lawful for commercial establishments to harass customers based on their race, so long as they’ll still sell them goods in the end.


Freedom of the press


It’s no secret that confidential sources are an important part of investigative journalism. In Risen v. United States, a reporter didn’t want to identify his confidential source when responding to a subpoena in a criminal trial. A lower court said he had to. As the dissenting judge pointed out, if reporters are compelled to divulge their confidential sources, the public’s access to important information will be limited. Perhaps for an institution that likes to be less-than-transparent, this seems unproblematic, but for Americans who want to know about what their government is up to, this may be a bigger deal. The court’s failure to hear this case leaves the press in a wholly uncertain position when it comes to protection for their sources. This matters to the press—and it should matter to everyone else who needs the press to tell them what’s going on.


The court’s decision not to decide a case means that whatever the lower court said remains the law, at least in that jurisdiction. And if the lower courts are in disagreement, confusion will reign. At his confirmation hearing in 2005,  John Roberts recognized that the court “could contribute more to the clarity and uniformity of the law [if it took] more cases.”


The court obviously can’t—and shouldn’t—take every case, and perhaps the court had good reasons for not taking these cases (and many others). But the one thing we can know for sure is the court decides not to hear lots of important cases each year, and as a result, justice is underserved for many. Court watchers are quick to criticize the court for the way it decides cases, but the court sometimes deserves criticism for the cases it doesn’t decide, as well.

More from Federal Courts and Nominations

Federal Courts and Nominations
January 17, 2024

The Leadership Conference on Civil and Human Rights Sign-On Letter Prioritizing Diverse Judges

Dear Senator, On behalf of The Leadership Conference on Civil and Human Rights and the...
Federal Courts and Nominations
July 31, 2023

Liberal justices earn praise for ‘independence’ on Supreme Court, but Thomas truly stands alone, expert says

Fox News
Some democrats compare Justice Clarence Thomas to ‘Uncle Tom’ and house slave in ‘Django Unchained’
By: Elizabeth B. Wydra, By Brianna Herlihy
Federal Courts and Nominations
July 7, 2023

In Her First Term, Justice Ketanji Brown Jackson ‘Came to Play’

The New York Times
From her first week on the Supreme Court bench in October to the final day...
By: Elizabeth B. Wydra, by Adam Liptak
Federal Courts and Nominations
July 8, 2023

The Supreme Court’s continuing march to the right

Major legal rulings that dismantled the use of race in college admissions, undermined protections for...
By: Elizabeth B. Wydra, by Tierney Sneed
Federal Courts and Nominations
June 25, 2023

Federal judge defends Clarence Thomas in new book, rejects ‘pot shots’ at Supreme Court

A federal appeals court judge previously on short lists for the Supreme Court is taking the rare...
By: Elizabeth B. Wydra
Federal Courts and Nominations
May 1, 2023

Supreme Court, done with arguments, turns to decisions

Roll Call
The justices have released opinions at a slow rate this term, and many of the...
By: Brianne J. Gorod, By Michael Macagnone