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Disagreement All Around: The Role of Dissents to Denials of Certiorari

Scholars have long debated the extent to which the Supreme Court responds to the whims of public opinion. Do the Justices push public opinion forward, or do they take current public opinion into account when writing their opinions? Brown vs. Board of Education was an instance in which the Court pushed public opinion forward, perhaps faster than the American public might have wanted. But the Court also experienced some push-back from Congress and the American public as a result, with evidence suggesting that the Court became more conservative in the drafting of its opinions in the immediate aftermath as a result of legitimacy concerns. The question rather quickly becomes one of agenda setting within the Court; at what point do the Justices decide they are ready to hear a controversial case? One way that Supreme Court Justices might signal to the lower courts, and the public at large, that they are ready to hear a controversial issue is through dissents to cert denials. To what extent do these signals exist, and do they predict the Court's later decision to hear controversial issues? In my paper, I examine a sample of cert denial dissents, evaluate the signals that exist within them, and show the extent to which these signals can explain future cert acceptances.