When one, two, or three justices disagree with the Supreme Court’s denial of a petition for review, they can, but aren’t required to, make their dissents public. The court’s internal operating practices and procedures provide, “In any case in which the petition, application, or motion is denied, a justice may request that his or her vote be recorded in the court minutes.” (Page 4 here; emphasis added.)
A public vote to grant a denied petition is a message vote. Former Justice Marvin Baxter, for example, said he used recorded votes to communicate to the appellate bar an interest in an issue.
But if a Court of Appeal opinion has multiple issues, the message from a recorded vote to grant review is often unclear.
We had that situation this week. Justice Goodwin Liu recorded votes to grant in three criminal cases (Justice Joshua Groban joined him on one) where the Court of Appeal had addressed several different issues, but he gave no public reason for his votes. Defendant’s counsel in one of the cases has since commented he believes a particular Miranda issue accounts for two of Justice Liu’s dissenting votes. That’s a reasonable guess. It’s uncertain, however. For example, in one of the Miranda-issue cases, the appellate court also decided an issue that is currently pending before the court in another matter; Justice Liu might have simply wanted to issue a grant-and-hold order.
Here’s a suggested solution:
Recorded dissenting votes can be accompanied by a statement that identifies the reason for the desired grant of review. Justice Liu revived a long-dormant practice of occasionally issuing separate statements when the court denies review. (E.g., here.) His separate statements have sometimes been opinion-length, but that is not necessary for most recorded votes. A simple sentence or two should suffice. In two of yesterday’s cases, for instance (and if accurate, which we don’t know), Justice Liu could have written, “I would grant review to decide whether the defendant’s Miranda rights were violated by admitting into evidence statements he made to an undercover officer posing as a fellow jail inmate.” That would have removed all doubt.