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.