Cert Denied, Cert Delayed, Cert Granted

As I reviewed the wall of receipts for cert denials, I noticed something of a pattern. In several cases, the Supreme Court denied certiorari over three dissenting votes. Invariably those three dissenters were Justices Thomas, Alito, and Gorsuch, though in some cases Justice Kavanaugh provides the third. Yet, a year or more later, the Court resolved the same or similar issue that was presented in another case. In recent years, the Court has taken to relisting a petition before granting it to make sure there are no vehicle problems. Indeed, some cases are relisted for months at end, only to be granted, like the AR-15 case. But in a handful of cases, the path to a cert grant is a cert denial.

Consider four examples.

In July 2021, the Supreme Court denied cert in Arlene’s Flowers v. Washington, over dissents from Thomas, Alito, and Gorsuch. This case had started way back in 2013. Two months later a cert petition was filed in 303 Creative v. Elenis, which was granted in February 2022. In June 2023, the Court ruled that requiring the designer to make a website for a gay wedding violated the Free Speech Clause of the First Amendment. This was the issue presented, and denied in Arlene’s Flowers. About two years lapsed between the cert denial and the issue being resolved.

In December 2023, the Supreme Court denied cert in Tingley v. Ferguson, over dissents from Justices Thomas, Alito, and Kavanaugh (but not Gorsuch). This case challenged Washington state’s ban on talk “conversion therapy.” Eleven months later in November 2024, a cert petition was filed in Chiles v. Salazar. This case challenged Colorado’s ban on conversion therapy. Cert was granted in March 2025, and Colorado’s law was declared unconstitutional in March 2026 by an 8-1 vote. Again, about two years lapsed between the cert denial and the issue being resolved.

In December 2024, the Supreme Court denied cert in Parents Protecting Our Children v. Eau Claire Area School District, Wisconsin, over dissents from Justices Thomas, Alito, and Kavanaugh (but not Gorsuch). This case was a challenge to a school’s policy to encourage students to “transition” without parental knowledge or consent. About a month later, an emergency application was filed in Mirabelli v. Bonta. In March 2026, the Supreme Court decided Mirabelli on the interim docket, largely settling the question presented in Parents Protecting Our Children. Here, about a year lapsed between the cert denial and the issue being resolved.

In June 2025, the Supreme Court denied cert in Snope v. Brown, over dissents from Justices Thomas, Alito, and Gorsuch. This case had been stuck in docket purgatory for nearly eight months. Justice Kavanaugh concurred in the denial of cert, but wrote “this Court should and presumably will will address the AR–15 issue soon, in the next Term or two.” The Court took two such cases about a year later in July 2026. A decision is likely to come by July 2027. Here, about two years will lapse between the cert denial and the issue being resolved. Though, to be fair, this issue has been pending since 2008 or so after Heller was decided. So the more accurate count is about two decades.

What can explain each of these changes? Well, the cert grant means that a Justice who did not join the dissental flipped his or her vote to grant cert. After Snope, Justice Kavanaugh clearly became the fourth vote. After Tingley, I would wager that Justice Gorsuch became the fourth vote. After Parents Protecting Children, I think Justice Barrett changed course, as she wrote a strong concurrence in Mirabelli. I am not sure who flipped after Arlene’s Flowers, but my guess would be Justice Kavanaugh.

I suppose the initial cert denial can be due to vehicle problems, though all of these cases are brought by sophisticated counsel who tee up the issues neatly. Something else may be going on. At least in Snope, Justice Kavanaugh apparently just wanted to clear some other items off the docket before going for the AR-15 case.

During her congressional testimony, Justice Kagan seemed quite content with the Court only granting sixty cases a year. I bet. I presume that the Court’s progressives do everything in their power to keep away liberal lower court rulings that could get reversed. Kagan offered this rosy account of the docket size:

I would say we have about an ordinary regular docket. If you look back a number of decades, the docket has gone down. When I clerked at the Court, I’m afraid to say how long ago, in the late 1980’s, the Court handled about 140 cases a year. The Court now handles in terms of regular argued cases maybe 70 cases a year, so a significant decrease. There is a cottage industry and explanation for why that decrease took place over time.  All the time that I’ve been on the court we’ve been relatively stable. So the last fifteen years or so we are doing about one year it’s 75, one year it’s 60, it’s something on that order. So we continue to hear cases every month and to always issue all our opinions before July 4 every year.

The number has not been 75 for some time. It has not been 70 for some time. 65 would seem like a bumper crop. We are now consistently below 60. Of course, what matter is not just the raw number. Does anyone really care about how many ERISA cases are decided? What matters are the sorts of cases that divide the nation. And in at least two dozen cases I’ve identified, the most hot-button issues seem to keep getting denied with three dissenting votes.

As I’ll explain in a future piece, a Justice should be evaluated not just based on the merits votes they cast, but on the cases they place on the docket. Justices Thomas, Alito, and Gorsuch are the most aggressive justices who wish to resolve issues that split the lower court. Justice Kavanaugh has gotten better on this front, and now seems to be following through on his promise, at least in the AR-15 context. Justice Barrett, from everything I can tell, is the least cert-eager Justice on the Court.

Justice Barrett relayed a relevant anecdote at a book event (it was not recorded, so I am trying to recreate it from memory.) Every year, she asks her law clerks at the start of the term to find cases that should be granted. Then, at the end of the term, she asks if there were some cases that should have been granted, but were not. Apparently, the clerks tell her that no cert-worthy cases were missed. Well, what the clerks are saying is that Justices Thomas, Alito, Gorsuch, and Kavanaugh just don’t know what makes a case cert-worthy. Ahem.

Justice Barrett has only ever dissented from the denial of certiorari once. Her caution and hesitancy keeps the docket small, much to Justice Kagan’s delight. Much more to come.