How to Cite a Concurrence In or Dissent From a Denial of Certiorari

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The Bluebook does not provide clear guidance on how to cite every authority that law students or legal practitioners need or wish to use in their papers, memos, and briefs. Sometimes, researchers will toil in vain looking for a particular rule or example to cover a less common type of source, only to find that there is no answer. They have stared into the abyss and the abyss has merely stared back! So what do you do now?

Most reference librarians you encounter will offer the same advice in this situation: look for an example of how that kind of source has been cited in the past and use your judgment to determine if that citation style fits within the gap left between one or more of the established Bluebook rules. A colleague described the situation nicely in a blog post several years ago, calling this ever-evolving blend of rule and precedent Bluebook common law.

A recent newsworthy example presented itself just last week, on February 19, 2019, when Justice Thomas wrote the following:

[New York Times Co. v. Sullivan, 376 U. S. 254 (1964)] and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own “‘federal rule[s]’” by balancing the “competing values at stake in defamation suits.”  Gertz, supra, at 334, 348 (quoting New York Times, supra, at 279).

We should not continue to reflexively apply this policy-driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

The quotation comes from a concurrence in a denial of a petition for certiorari to the Supreme Court. Concurrences and dissents from denials of cert, as they are colloquially known, are statements offering support or disapproval for decisions by the court not to hear a case. These orders make up what court-watchers have called the court’s “Shadow Docket,” and about which some empirical study has begun. For the completely uninitiated, see the following post by SCOTUSBlog publisher and co-founder Tom Goldstein: What you can learn from opinions regarding the denial of certiorari. (Goldstein will be the featured speaker at Carolina Law’s 2019 Annual Murphy Lecture, Wednesday, March 20 at 12:00 p.m.)

The case being denied cert was No. 17–1542, McKee v. Cosby, on appeal from the Court of Appeals for the First Circuit, in which the question presented concerned whether Kathrine McKee, a woman who accused Bill Cosby of sexual assault had become a limited purpose public figure in a defamation case. Justice Thomas agreed that the court had acted correctly in denying cert for the case, but then wrote the lines quoted above, which have led legal commentators to speculate on the Justice’s First Amendment jurisprudence.

Thankfully, we need not delve into those dicey waters here, but rather must only take on the more prosaic (but perhaps no less interesting) issue of how to cite to the Justice’s statement. There are two problems to tackle, and we will take them in turn. First, how does one properly cite a recent slip opinion from the Supreme Court, and second, how does one indicate that the document cited is a concurrence or dissent from the denial of cert. 

Bluebook Rules 10.8 and 10.9 offer us a starting point on the first question. Rule 10.8.1(b) covers cases available only as slip opinions, but the case in question here has been assigned a volume in United States Reports. Therefore, it will bear the somewhat awkward citation McKee v. Cosby, 586 U.S. ____ (2019), in which the blank, created with four underscore characters, represents an as-yet unassigned page number. (Interestingly, Westlaw represents the blanks with hyphen characters, while Lexis uses underscores.)

As legal citation experts have noted, there are numerous problems with this citation format, but it is the one we have and the one in wide usage in the country’s court systems. Still, it can take anywhere from four to five years for a page number to be assigned. Therefore, a footnoted short citation, governed by Rule 10.9(a)(iii), would presumably also require reference to the slip opinion’s page number. Indeed, this is how courts and law journals cite these types of documents, so a reference to Justice Thomas’ quoted statement, coming from the second page of the slip opinion, would be short cited in a footnote as McKee, 586 U.S. at ____ (slip op. at 2). 

Bluebook Rule 10.6(a) guides us on the second question, as to crafting the proper parenthetical noting the weight of authority. Absent an enumerated abbreviation in Table T8, it’s necessary to look for examples of how these documents have been cited. For a recent citation to a concurrence in denial of cert, see, e.g., Moore v. Texas, 586 U.S. ____, ____ (2019) (citing as Salazar-Limon v. Houston, 581 U.S. ____,____, 137 S.Ct. 1277, 1278, 197 L.Ed.2d 751 (2017) (Alito, J., concurring in denial of certiorari)). For a recent citation to a dissent from denial of cert, see, e.g., Zagorski v. Parker, 586 U.S., ____, ____ (Mem.) (2018) (citing as Arthur v. Dunn, 580 U.S. ____, ____, 137 S.Ct. 725, 725, 197 L.Ed.2d 225 (2017) (Sotomayor, J., dissenting from denial of certiorari)).

Let’s put it all together, then. Justice Thomas’ remarks on defamation law can be found at McKee v. Cosby, 586 U.S. ____, ____ (2019) (Thomas, J., concurring in denial of certiorari).

Now that wasn’t too hard, was it?

Posted by Aaron S. Kirschenfeld on Thu. February 28, 2019 1:30 PM
Categories: Uncategorized

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