The Evenhandedness of Justice Thomas’s Noriega dissent

Or, “Elwood on Adler on Dorf on Thomas on Noriega.” 

As Jonathan Adler notes below, Michael Dorf comments favorably on the evenhandedness of Justice Thomas’s description in his dissent from denial of cert. of the arguments made by Manuel Noriega, even though Prof. Dorf presumes that Justice Thomas, like Dorf himself, would not be persuaded by them.

I think that Justice Thomas is, indeed, even-handed, and the tone of his dissent may have reflected a desire to reserve judgment on the merits of a claim before there had been a chance for full briefing and argument. Although there are plenty of instances where Justices are more than willing to share their thoughts on the merits before full briefing and argument; for a recent example, you need look no further than Justice Thomas’s most recent installment in his long-running debate with Justices Stevens and Breyer over the merits of so-called Lackey claims in his recent concurrence in the denial of cert in Johnson v. Bredesen. (Quoting his earlier concurrence in the denial of cert in another Lackey case, Thomas wrote, “[t]here is simply no authority ‘in the American constitutional tradition or in this Court’s precedent for the proposition that adefendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.'”)

But another, and perhaps more compelling explanation, is the nature of a dissent from denial of certiorari. The point of such an opinion is not simply to express your displeasure in the denial of cert, but to make such a compelling argument that others join your opinion, in the knowledge that, when you have three votes and a fourth person in won over by your arguments, the opinion is filed away without being published to be replaced by the simple notation on the orders list, “[t]he petition for writ of certiorari is granted.”  It happens.

It reduces the number of potential Justices who will actually join your opinion if you express a view on the merits. In addition, those who believe in strategic voting at the cert stage would likely predict that saying claims in a petition are meritless would increase the chances of a “defensive denial” of cert because people who see merit in the petitioner’s arguments can count the votes against the position. (Although those on the Court might have predicted somewhat reliably Justice Thomas’s views on this subject.)