• Justices occasionally write to explain why they think court should hear particular rejected issue • Vary widely in use of “opinions related to orders” depending on personality, agenda
The U.S. Supreme Court’s “opinions related to orders” get less attention than their merits opinions, but they give courtwatchers clues about the justices who write them.
The justices vary quite a bit in how often they write opinions related to orders, Bloomberg Law analysis shows. Since October 2011, Justice Sonia Sotomayor has written 31 opinions related to orders. Justice Anthony M. Kennedy has written none.
“I think it isn’t surprising that there’s some variation between the Justices,”Daniel Epps, a former clerk for Kennedy, told Bloomberg Law. “But I think it is a bit surprising just how much variance there is.”
A lot of the variance is related to personality, Gibson, Dunn & Crutcher LLP’sHelgi Walker, who clerked for Justice Clarence Thomas, said.
But another reason for the variance might be related to the individual justices’ long-term agenda and how successful they are at advancing those agendas in merits cases.
Opening Black Box
The Supreme Court is asked to hear7,000–8,000new cases each term, but they only agree to review around 70.
Most of the work of deciding which cases to take and which to turn away “takes place completely outside the view of the parties, their advocates, and the public,” Robert Yablon, a former clerk for Sotomayor,wrotein 2014.
“A handful of times each year, however, a Justice cracks open the black box of the certiorari process and issues an explanatory statement respecting the denial of certiorari,” Yablon said.
Sometimes a justice writes to express disagreement about the court’s decision not to hear a particular case. Other times a justice will write that the court should take up the issue, but that the case wasn’t the right one to air out the issue.
Justices often join statements written by other justices.
Since October 2011, justices have issued 121 ORTOs, Bloomberg Law research shows.
Thomas and Sotomayor have produced nearly half of the ORTOs issued. Only two other justices of the remaining eight—including Justice Antonin Scalia, who died in 2016—have written more than eight.
Chief Justice John G. Roberts Jr. and Justice Ruth Bader Ginsburg have only written five and seven ORTOs, respectively.
Kennedy and Justice Elena Kagan have written even fewer, with zero and one, respectively.
Personality Shines Through
The decision to write an ORTO is completely discretionary, Walker noted. There are really no rules, she said.
The frequency with which the justices write them depends largely on their personalities, Walker said.
Sotomayor and Thomas—the two justices who have written the most ORTOs—probably have the strongest personalities on the court, Walker said. You really see those personalities shine through in the ORTOs, she said.
Beyond personality, a justice’s ability to get a particular issue they care about to the high court seems to play into the frequency of their ORTOs, too.
One reason to write an ORTO is to send signals to litigants, lower courts, and even the other justices that a particular issue is worthy of the court’s review, Epps said.
“Certain justices, like Justice Kennedy,” who is often the swing justice in controversial cases, “may have little trouble finding people to join on when they look to grant a case,” Epps said.
“Justices with more idiosyncratic views, like Justice Thomas, are likely less successful” at getting particular cases granted, Epps said.
And the justices’ ability to pull together a majority in those cases that they do agree to hear may help explain the variance in ORTOs frequency.
Among the justices with the fewest ORTOs are three of the court’s centrist justices—including Roberts, Kennedy, Justice Stephen G. Breyer, and Kagan—who seem willing to “muffle some disagreements” in order to build consensus, Bloomberg’s Greg Stohrwrote. These justices often find themselves on the winning side of merits cases.
Breyer is the only justice among that group who frequently writes ORTOs. Breyer’s ORTOs, however, typically focus on highlighting constitutional problems with the death penalty—a concern that a majority of the justices don’t seem to share. Since highlighting the issue in a 2014dissent, the court has yet to take Breyer’s suggestion to broadly examine the constitutionality of the death penalty in light of current practices.