The Volokh Conspiracy - "Supreme Court Agrees":

I dream of a day when newspapers won't describe denials of certiorari as statements that the "Supreme Court agrees" with the lower court decision. Here's the latest, over an article by David Savage, the L.A. Times' Supreme Court correspondent. (I should stress that headlines are written by headline writers, not by reporters.)

Fantasy baseball leagues can use real players' names, Supreme Court agrees
Justices deny the appeal by pro players who argued that no one had a right to exploit their identities for commercial gain.

But the Supreme Court's denial of certiorari is expressly not a statement that the Court agrees with the decision below. The Court might deny certiorari because it thinks there's no disagreement among lower courts, because it thinks there's some procedural issue with the case that makes it an imperfect vehicle for deciding an issue, or because it doesn't think the issue is important enough. I suspect there's some weak correlation between the Justices' agreement with the decision below and the decision to deny certiorari, but it's very weak, except perhaps in cases that are themselves of extraordinarily deep national importance.

The most important practical implication of this is that the decision doesn't set any precedent (as Savage correctly said in his last paragraph). A court in another circuit, or a state court, is free to reach a result that differs from the decision in this case, so long as a later lawsuit was brought by someone who wasn't a plaintiff (or closely enough linked with a plaintiff) in this case. That possibility of a perfectly legitimate contrary decision in a future case wouldn't be so if the Supreme Court had really expressed "agree[ment]" with the lower court decision.

Readers, I think, are entitled not to be misled about whether the Supreme Court Justices (1) actually decided the case on the merits, and expressed actual agreement, or (2) simply declined to disturb the lower court decision and left the question potentially open. It's too bad that leading newspapers continue to flub this.

	[Eugene Volokh, June 2, 2008 at 4:34pm] Trackbacks "Supreme Court Agrees": I dream of a day when newspapers won't describe denials of certiorari as statements that the "Supreme Court agrees" with the lower court decision. Here's the latest, over an article by David Savage, the L.A. Times' Supreme Court correspondent. (I should stress that headlines are written by headline writers, not by reporters.) Fantasy baseball leagues can use real players' names, Supreme Court agrees Justices deny the appeal by pro players who argued that no one had a right to exploit their identities for commercial gain. But the Supreme Court's denial of certiorari is expressly not a statement that the Court agrees with the decision below. The Court might deny certiorari because it thinks there's no disagreement among lower courts, because it thinks there's some procedural issue with the case that makes it an imperfect vehicle for deciding an issue, or because it doesn't think the issue is important enough. I suspect there's some weak correlation between the Justices' agreement with the decision below and the decision to deny certiorari, but it's very weak, except perhaps in cases that are themselves of extraordinarily deep national importance. The most important practical implication of this is that the decision doesn't set any precedent (as Savage correctly said in his last paragraph). A court in another circuit, or a state court, is free to reach a result that differs from the decision in this case, so long as a later lawsuit was brought by someone who wasn't a plaintiff (or closely enough linked with a plaintiff) in this case. That possibility of a perfectly legitimate contrary decision in a future case wouldn't be so if the Supreme Court had really expressed "agree[ment]" with the lower court decision. Readers, I think, are entitled not to be misled about whether the Supreme Court Justices (1) actually decided the case on the merits, and expressed actual agreement, or (2) simply declined to disturb the lower court decision and left the question potentially open. It's too bad that leading newspapers continue to flub this.