Monday, November 25, 2002

STATEMENT RESPECTING STATEMENT RESPECTING DENIAL OF WRIT (originally posted 10/15/01)

It is not every day that you see four justices joining a written opinion in effect opposing a denial of certiorari. Yet today we have Justice Breyer, joined by Justices Stevens, O'Connor, and Souter, opining that cert. should be granted in Overton v. Ohio, No. 00-9769, and the case summarily reversed as contrary to Supreme Court precedent, but nevertheless voting to deny the petition for cert.

On the one hand, Justice Breyer's "Statement respecting the denial of the petition for writ of certiorari" can be seen as a useful reminder to counsel that establishing error on the merits of the decision below is usually secondary to other factors affecting cert.-worthiness. Yet at the same time, the "statement" is confusing. As a formal matter, a summary reversal requires a cert. grant in any event, and it is at least questionable whether it makes sense to vote to deny cert. when one has expressly opined that cert. should be granted. After all, as a logical matter, the decision whether to grant argument or to reverse summarily is separate from the question whether cert. should be granted at all.

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