Over the course of the past week, both the blogosphere and mainstream media have been spending quite a bit of time over at the Supreme Court rumor mill. There has been a lot of buzz about two cases concerned with president-elect Obama’s citizenship, Donofrio v. Wells (08A407) and Wrotnowski v. Bysiewicz (08A469). The applications for stays in both Donofrio and Wrotnowski were originally rejected by the Justices who handle the Circuits from which they originated (the Third and Second, respectively). These rejecting Justices – Souter in Donofrio and Ginsburg in Wrotnowski – are both solid members of the Court’s liberal bloc. Both petitions were then resubmitted to another Justice, who then referred the case to the Court as a whole. These referring Justices – Thomas in Donofrio and Scalia in Wrotnowski – are both solid members of the Court’s conservative bloc.

A lot of people have been making a big deal out of this, arguing that referrals of dead-end citizenship cases by conservative Justices could be interpreted as a slight on Obama. Nia-Malika Henderson of Politico even speculated that Thomas’ referral of Donofrio might just be his way of

returning the favor — putting through a case that questions whether Obama should be president, after Obama said [at the Saddeback Forum that] he wouldn’t have picked Thomas for the high court.

We here at the DailyWrit admit that we got caught up in all the drama, even speculating that the conservative bloc might be tacitly participating in a game theory model called “cheap talk signaling” by using these referrals to remind Obama that they still have Judicial Review over the legislation he pushes through a very Democratic Congress. But after reading one too many stories about the referrals, Kedar realized that bloggers might be reading too much into this – mapping partisan politics onto a situation of routine Court procedure. Curious, we sent an e-mail to SCOTUSblogger Lyle Denniston, one of the top SCOTUS authorities in all the land. He graciously responded:

[Donofrio] was a routine referral. The Court formerly allowed repeated applications, even to all nine Justices separately. Because of perceived abuses of that approach, the Court now follows the practice — no matter which Justice gets the second application — to have it go to Conference, to end the Justice-shopping.

The fact of referral in the New Jersey case was totally without significance. The more telling fact, in each of these cases, is that the Court does not even ask for a response. That indicates it believes they are totally frivolous — as anyone who reads the papers will quickly discern.

Sorry, no political intrigue here.

Regards, and thanks for reading the blog,
Lyle D.

This should lay to rest all the rumors that Justice Thomas has an ax to grind with the president-elect. It turns out that the referral was a simple procedural matter of routine. When a petition is denied by a liberal Justice, it is not uncommon for the petitioner to then refile the application with a Justice who is more conservative (and vice-versa); to prevent the petitioner from simply resubmitting again and again, the second petition automatically triggers a referral to conference from the Justice who received that resubmitted application. It just so happens that the Donofrio and Wrotnowski were resubmitted to Justices Thomas and Scalia; thus, it is simply coincidence and nothing more that the cases were referred for Court review by conservative Justices.

But what truly shocked us here at the DailyWrit was how many media outlets – large and small, local and national – dropped the ball on this story. Among those who gravely misinterpreted Court procedure were: Kate Phillips at the Caucus (a blog of The New York Times), Elie Mystal at Above the Law, Earl Hutchinson at The American Chronicle, Les Payne at Newsday, a number of the good folks over at DailyKos, James Wright at New American Media, bloggers at ProgressPolitics, and, as we mentioned, Nia-Malika Henderson at Politico.

Who got it right? Well, Robert Barnes at the Washington Post, Eugene Volokh at his blog, Mr. Denniston, Ben Smith over at Politico, and Wikipedia!

5 Responses to “Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices”

  1. 1 Ted

    from itooktheredpill.wordpress.com:

    The truth is that the Supreme Court did NOT “deny cert” to Leo Donofrio yesterday. The truth is the Supreme Court did NOT “turn down” Donofrio’s case yesterday. The truth is that Leo Donofrio’s case is still “PENDING” at the Supreme Court, and the court only denied the application to stay an election.

    …the election that Donofrio had been trying to stay was the November 4th election (he hurriedly filed his case on November 3rd to do so).

    So, it is logical that the court would, on December 8th, deny an application to stay an election that already happened on November 4th.

    Donofrio’s case is still PENDING.

    MONDAY, DECEMBER 8, 2008

    The application for stay addressed to Justice Thomas and referred to the Court is denied.

    [Note the ABSENCE of Donofrio's case here]

    Donofrio’s case is NOT listed under CERTIORARI DENIED.

    Everyone should take another look at the order list from the SCOTUS yesterday.

    Not only was Donofrio’s case NOT denied certiorari, but a third case (Cort Wrotnowski vs. Susan Bysiewicz, Connecticut Secretary of State) was referred to the Court by Justice Scalia – distributed for conference this coming Friday:

    Dec 8 2008 DISTRIBUTED for Conference of December 12, 2008.
    Dec 8 2008 Application (08A469) referred to the Court by Justice Scalia.

    It sounds like Donofrio may have called this correctly earlier today:

    On the chance that SCOTUS was looking at both my case and Cort’s case, I must stress that Cort’s case does not have the same procedural hang up that mine does. It may be that without a decision on the Judicial misconduct allegation correcting the NJ Appellate Division case file, SCOTUS might have been in the position of not being able to hear my case as it would appear that my case was not before them on the proper procedural grounds.

    I did file a direct appeal under the proper NJ Court rules, but the lower Court judge refused to acknowledge that and if his fraudulent docketing was used by SCOTUS they would have a solid procedural basis to throw mine out.

    Friday could turn out to be a very, very big news day.

  2. 2 James

    That’s not quite right, Ted.

    The reason that you don’t see Donofrio under the heading “CERTIORARI DENIED” is because no petition for a writ of certiorari was ever filed with the Court. Take a look at the Docket for 08A407, which notes that the application itself was originally submitted “pending the filing and disposition of a petition for a writ of certiorari.” The docket sheet shows that no such petition was ever filed.

    Watchers of the Court have thus correctly interpreted the dismissal of the application for stay without comment as the Court’s way of, as you say, “[turning] down” the case. As Mr. Denniston so kindly noted in his e-mail, the fact that the Court did not even ask for a response in the matter “indicates it believes they are totally frivolous — as anyone who reads the papers will quickly discern.”

    There was only one question before the Court, which was whether or not to accept the resubmitted application for a stay. The Court did the only thing within its recourse and denied that application. If and when a petition for a writ of certiorari is filed, it will be denied.

  3. 3 Ted

    James, well, we’ll learn which one of us is essentially correct after Friday. I say the Court will Stay the vote of the Electors. What do you predict?

  4. 4 James


    Just to clarify, the matter of the application for stay in Wrotnowski (the petition to be decided Friday that you’re talking about in your comment) is a completely different matter than Donofrio (the already-denied petition I was talking about in my previous comment).

    That said, I predict that the application for stay in Wrotnowski will be denied without comment in conference on Friday.

    I might add, as I’ve said a number of times on this blog, that the “safe harbor” date for Electoral College votes was yesterday, December 9th. That means that a stay of the December 15th Electoral College meeting would involve some dubious legal semantics: the Court could stay the meeting, of course, but they couldn’t prevent the electors who were locked yesterday by their Secretaries of State from voting for Obama whenever the Electoral College ultimately meets. Thus, even if Obama is eventually declared constitutionally ineligible, the electors locked yesterday could still vote for him (along with whoever else who wants to).

    We appreciate you keeping up with the issue on our site, Ted. Thank you.

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