The Supreme Court's newest justice chided his eight brethren yesterday for writing "totally unnecessary" to denials of petitions for review of decisions by lower tribunals.
Justice John Paul Stevens, using a dissent to a denial of review in an Internal Revenue Service case as his launching pad, wrote a 4 1/2-page opinion in which he urged his colleagues to "read again and again" what the late Justice Felix Frankfurter wrote about the issue neadly 39 years ago.
"Inasmuch . . . as all that a denial of a petition for a writ of certiorari [review] means is that fewer than four members of the court thought it should be granted, this court has rigorously insisted that such a denial carries with it no implication whatever regarding the court's views on the merits of a case which it has declined to review," Frankfurter wrote.
In that era, Stevens said, the justices "were too busy to spend their scarce time writing dissents from denials of certiorari. Such opinions were almost nonexistent."
"Although the workload of the court has dramatically increased" since then, "most present members of the court frequently file written dissents from certiorari denials," Stevens said. He never write them - and last July he reduced the number of his clerks from three to two. Two of his colleagues have three each, six have four each.
Stevens said the legal significance of such dissents is less than zero, that they can mislead by making arguments for review that go unanswered, and that they reveal "selected bits of information" that "tend to compromise the otherwise secret deliberations in our conference."