The Washington Post

A cert denial is not a ruling on the merits

“Supreme Court ruling sides with Planned Parenthood,” declares a headline in the Arizona Daily Star. The accompanying story begins: “Arizona cannot cut off family-planning funding to Planned Parenthood simply because the organization also provides abortions, the U.S. Supreme Court ruled Monday.” But if one reads just a little bit further, one discovers that neither statement is true.

If the Supreme Court had issued a ruling concerning whether states may bar Planned Parenthood or other groups that provide abortions from receiving federal funding it would have been a significant story, but that is not what happened. Rather, all the Supreme Court did is deny Arizona’s petition seeking review of a lower court ruling that had struck down the relevant state law. This is not a “ruling” of the Court and it does not have any precedential effect. While it lets the lower court opinion stand, it does not provide any indication of how any of the justices feel about the merits of the underlying question.

The justices reject the vast majority of petitions for certiorari without comment, and it is a profound mistake to characterize such a decision as a ruling on the merits. All that a cert denial it means is that there were not four justices who believed that this particular case was worthy of Supreme Court review. There are many potential reasons for this, most of which have nothing to do with the merits of the underlying issue, such as whether there is a circuit split.

As you may have gathered, this is one of my pet peeves. It’s something that journalists who cover the Supreme Court (and their editors) should get right (and, thankfully, most all of those regularly on the Supreme Court beat do).

[CORRECTION: In my haste to draft this post, I inadvertently wrote that it takes five justices to grant certiorari when it actually takes four. I’ve corrected the post.]

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.

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