Justice Brett Kavanaugh has been overruled by his Supreme Court colleagues more frequently than any other justice during the 2023-2024 term, with nine of his recommended petitions being denied certiorari.
A recent analysis by Newsweek revealed that Justice Brett Kavanaugh's recommendations for nine petitions were denied certiorari this term, marking the highest number of overruled petitions among his colleagues.
These denials underscore a notable disparity between Kavanaugh's views and those of the other justices regarding the cases the Court should consider.
The Supreme Court's protocol requires at least four justices to agree to grant certiorari, yet Kavanaugh's petitions did not garner sufficient support.
This term has seen 15 public dissents on petition denials, with Kavanaugh involved in nine. Justice Ketanji Brown Jackson, who dissented on four petition denials, follows him. Justices Neil Gorsuch and Sonia Sotomayor each dissented three times, while Justice Clarence Thomas dissented twice.
Justices Elena Kagan and Samuel Alito each dissented once, and Chief Justice John Roberts and Justice Amy Coney Barrett did not publicly dissent on any petition denials.
Kavanaugh is regarded as the Court's median justice, a role that may contribute to his higher number of public dissents.
According to Alex Badas, public dissents from certiorari denials are uncommon, as the Court denies thousands of such petitions each term.
Badas notes that justices typically dissent from certiorari denials for two reasons: to express strong views on a case and seek to rectify a lower court ruling, or to signal to other litigants that at least one justice would consider the issues presented in the denied petition.
Among the significant cases this term, Jackson, Sotomayor, and Kagan dissented in Johnson v. Prentice, involving a prisoner deprived of exercise for three years. Jackson argued that there was ample evidence to show that the deprivation resulted from unconstitutional deliberate indifference.
In Tingley v. Ferguson, Kavanaugh, Thomas, and Alito dissented on the constitutionality of banning "conversion therapy" for minors, with Thomas emphasizing the First Amendment implications and Alito asserting that such bans clearly restrict speech.
Badas suggests that Kavanaugh's dissents may serve a symbolic purpose, highlighting his strategic positioning on the Court.
As the median justice, Kavanaugh's dissents could be particularly meaningful, signaling to litigants the possibility of gaining his support in future cases. This strategic signaling may explain his higher number of public dissents compared to his colleagues.
Liberal justices, according to Badas, are less likely to dissent publicly to avoid setting unfavorable precedents.
However, when they do dissent, it is often due to strong preferences about a lower court's ruling and a belief that the Supreme Court should intervene to correct it. These dissents aim to highlight perceived injustices and advocate for the Court's corrective action.
Despite the higher number of dissents, Chief Justice Roberts and Justice Barrett did not publicly dissent on any petition denials this term, reflecting a potential preference for maintaining Court unity or differing views on which cases merit review.
The division among the justices on certiorari denials underscores the varying judicial philosophies and priorities within the Court.
Justice Brett Kavanaugh's frequent overruling by his Supreme Court colleagues during the 2023-2024 term highlights a significant divergence in opinion on case selection.
With nine petitions denied certiorari, Kavanaugh's dissents, influenced by his median position on the Court, serve as strategic signals to other litigants.
The term has seen varied dissent patterns among the justices, reflecting their differing judicial philosophies and priorities. As the Court continues to navigate complex legal issues, these dissents provide insight into the justices' perspectives and the evolving dynamics within the Supreme Court.
