The first document at this site is a memo to Kagan’s then-boss, Justice Thurgood Marshall, recommending that the Court deny review in a particular case. The way this process works, for background purposes, is basically this: the Court receives many thousands of petitions for review (called “petitions for a writ of certiorari, or “cert petitions” for short) each year. Each petition is assigned to a law clerk, and the clerk writes a brief memo summarizing the facts, the applicable law, and a brief analysis and recommendation as to whether or not the Court should grant review. In the vast majority of cases, the recommendation will be “deny.” Of the hundreds of cert petitions I reviewed in my year working at the Court, I recommended “grant” only twice (if you’re curious, the Court granted one of them, and denied the other).
The NYT chose to highlight a memo written by Kagan recommending that the Court deny review in a case concerning the interplay of immigration law and criminal law. Here’s how they present it:
From the highlighted bit — obviously what the NYT thinks is most important — Kagan’s position may seem surprising. Is she recommending that the Court deny review in a case where the result was legally wrong, simply because the result was in her view “equitable”? That’s apparently what NYT reporter Charlie Savage thinks:
Ms. Kagan wrote that the Justice Department’s view was “almost certainly correct.” Still, she recommended against taking the appeal because the judge had “ensured an equitable result” at “no great cost to the Republic.”
But that’s probably an inaccurate interpretation. In the context of a memo on a cert petition, it is entirely routine to recommend denying review even though the result may have been incorrect. The Supreme Court only takes a tiny fraction of the cases in which review is sought; a significant percentage of the cases in which review is denied were almost certainly wrongly decided. Unless a case presents a split between different courts of appeals, or presents a question of unusual importance, or otherwise seems like an exceptional case requiring Supreme Court review, cert will almost certainly be denied. The mere fact that the lower court got it wrong is a relatively unimportant factor in the certiorari calculus.
What actually drove Kagan’s recommendation to deny review, IMHO, is the next bit, which the NYT did not highlight:
Notwithstanding the [Solicitor General]’s flaming rhetoric, the [District Court]’s decision and the [Court of Appeals]’s page-long affirmance is unlikely to have any consequences beyond this case. This very unusual case simply does not present a certworthy issue.
Particularly because the facts in this case were quite odd, Kagan’s recommendation seems to me absolutely correct. A case featuring strange facts, unlikely to recur, to which the lower court applied settled law — whether or not correctly — in a manner unlikely to set an important precedent, is a terrible candidate for Supreme Court review. This cert memo tells us nothing more than the fact that Kagan was perfectly capable of telling “certworthy” cases from non-certworthy cases, according to well-established criteria. It’s an entirely ordinary cert memo, IMHO, that shouldn’t be on the NYT’s site.
It seems likely that ‘equitable result’ will be the ’empathy’ of these confirmation hearings.
flaming rhetoric
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p>wheeeee!
She backhands the Solicitor General’s “flaming rhetoric”, then later, as Solicitor General, manages to slip in some juicy disparagement of one or more justices’ rhetoric, as well as getting testy with Scalia during her oral argument in Citizens United.
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p>I can’t wait until she’s actually on the bench; I’m hoping Scalia’s head explodes in the first session (not that I wish anyone as completely delusional about the role of corporations and about the nature of the constitution as Scalia is any harm, but only in the interest of moving the Court to the left).
the Solicitor General at the time was none other than Charles Fried, now one of Kagan’s biggest boosters from the right. (Amusingly enough, our own Bill Weld is also on the government’s brief.)
That’s the tricky thing with media coverage and (by extension) the confirmation hearing themselves. So much of this discussion every time a vacancy comes up focuses around the same few “hot-button” constitutional issues — abortion, death penalty, affirmative action — which are relatively easy to understand and everyone has an opinion.
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p>Where a new Justice will have the most impact these days, however, is in statutory cases which are convoluted and dull (like getting deep in the legal weeds of immigration law, or dealing with preemption law and other business cases…and who the heck wants to talk about that?). That’s where most of the action is on the Court nowadays, but the media will often get the reporting wrong. This is somewhat understandable since it holds out little interest to the broader public despite its legal importance, but it’s still unfortunate.
HUGE potential impact, gave government WAY too much power, and even now it is not widely known until YOUR house is involved.
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p>SOCIAL ISSUES ARE NOT GOVERNMENT. This applies to BOTH sides.
Kelo was the case that made me really research different judicial philosophies since the methods used for that case were incredibly wrong and certainly not even remotely linked textually to the Constitution.
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p>Also I would agree that the MSM has portrayed the court as this ultimate arbiter of deciding social issues when in fact they are not, and shouldn’t be. Instead, in cases that do not affect individual rights, they should differ to state and federal legislative bodies which are responsible to the people.