THE SUPREME COURT'S VOTING STRATEGIES: A New "Defensive Denial" Dynamic

In recent days, the Supreme Court has handed down two significant 5-4 decisions. In the more portentous of the two, the Court ruled that Congress, using its powers under the Fourteenth Amendment, could not make states subject to suits by their employees for violating the Americans with Disabilities Act. In another hard-fought case, the Court struck down a second congressional enactment, this one prohibiting federal legal services lawyers from challenging federal welfare laws.

Aside from the substantial impact these decisions are likely to have on important areas of law, they serve as yet two more reminders of the extraordinarily narrow margin by which this Court decides many of its most significant cases. This fact, in turn, sheds some light on another largely unnoticed ruling the Court rendered in the last two weeks: it denied review of a closely watched abortion case, in which the Court of Appeals for the Fourth Circuit had upheld the constitutionality of a 27-page book of abortion regulations that South Carolina had promulgated.

The Justices, who accept for review only roughly 80 of the 7000 or so cases in which review is sought, basically never reveal why they decide not to hear a case (or why they decide to hear one, for that matter). There are many ideologically neutral reasons for turning away a case. Some cases fail to raise significant questions of federal law; others are procedurally flawed, have underdeveloped records, or are highly fact-specific, so that any ruling in the case would be difficult to generalize to other situations and thus would not serve as a strong precedent.

At the same time, many Justices over the years have voted not to review certain cases for overtly ideological reasons. This practice is known inside the Court as the "defensive denial" — a strategy by which a justice will vote to deny review because the justice fears that, if review is granted, the Court will reach the wrong result and make bad law. While defensive denials have a long history, the current Court is exhibiting a new and interesting dynamic in its Justices' use of the defensive denial.

The practice of "defensive denials" was prevalent among the liberal justices in the mid- and late 1980s, especially in areas such as the law relating to the Fourth Amendment exclusionary rule, which requires suppression of the fruits of an illegal search. In areas like this, the conservatives were interested in retrenchment — wanting, for example, to roll back the boundaries of the exclusionary rule so that more evidence could be admissible even if illegally procured, and more prosecutions could go forward.

In this and other, similar areas, the conservatives had the votes to achieve the results they wanted — but they needed to get the Court to hear the cases first. Several liberal justices candidly admitted trying to stem the conservative tide by voting not to review Fourth Amendment cases, hoping that their conservative counterparts would not muster the four votes necessary to grant review.

Liberal clerks, too, sometimes got into the act by writing "pool memos" recommending against review because of their concern for how the Court would ultimately rule if review was granted. Because Justices, with rare exceptions, make a habit of relying on pool memos from other Justices' clerks, this tactic could be quite effective — typically, at the stage at which review is granted or denied, a Justice may know little, if anything, more about a given case than what is reflected in a single clerk's pool memo.

Defensive denials are not a modern invention. Justice Felix Frankfurter thought that several of his colleagues commonly voted against granting review (in Court parlance, "certiorari," abbreviated as "cert") in otherwise cert-worthy cases, because they expected to come out on the losing side if the Court issued a ruling.

Because Justice O'Connor's views on hot button issue are often highly personal, idiosyncratic, and unpredictable, neither political wing at the Court can be certain which way she will vote. Accordingly, while in the past it had generally been the liberals who engaged in defensive denials, now justices on both sides of the political spectrum may well be voting to deny review in high profile cases rather than risk the vagaries of O'Connor's jurisprudence. (It is possible that this sometimes happens, as well, with Justice Kennedy, who while generally conservative, voted to uphold Roe v. Wade and is often liberal on First Amendment issues; O'Connor's vote on many cases, however, seems less predictable than Kennedy's, so the phenomenon seems more closely traceable to her).

I call this climate — in which uncertainty as to O'Connor's future vote sparks frequent cert denials — the balance of fear at the Court. There is no way to know for sure whether this balance of fear caused the Court's decision not to review the South Carolina abortion case, but a good case can be made that it did.

In the wake of last year's 5-4 decision striking down Nebraska's partial-birth abortion ban, it is clear that four of the Justices (Stevens, Souter, Ginsberg, and Breyer) are prepared to strike down all but relatively benign abortion regulations. In contrast, four other Justices (Rehnquist, Scalia, Kennedy, and Thomas) take the opposite view and are prepared to uphold all but the most draconian regulations — and (with the exception of Justice Kennedy) perhaps to overrule Roe v. Wade entirely.

Between these two wings, Justice O'Connor holds down the middle ground; neither side can be sure in any particular case whether she will further entrench or further undermine the right to abortion. Hence potential abortion cases go by the boards.

This same strategic dynamic may account for the justices' taking a pass on other seemingly likely candidates for Court review. During a recent Term, for example, the Court declined to review a much-discussed affirmative action case in which the Fifth Circuit effectively ended affirmative action in higher education in Texas, Louisiana, and Mississippi, even though this ruling seem sharply at odds with the Supreme Court's own precedents. The Court has been equally reticent recently about taking cases raising certain kinds of church-state issues, such as the constitutionality of vouchers — again perhaps due to the unpredictability of Justice O'Connor's vote on these issues.

There is nothing especially pernicious about the Court's ducking such cases, though it may at times infuse the law with a degree of uncertainty. But it certainly is an indication that the justices, like so many of us outside the Court, are looking ahead and calculating the potential political effect of impending retirements from the bench — including, perhaps, O'Connor's. In the meantime, they are creating a reservoir of significant issues for the Court to take up if and when such a shift occurs.