You can't say that out loud

You can never read too much into it when the US Supreme Court declines to hear a case. They get thousands of cert petitions each year and only accept about 70-80. A lot goes into deciding which cert petitions to grant and which to deny. Cases may not be set up in the ideal procedural posture to reach an issue. An issue may be too similar to something they recently considered. It may not be an issue that comes up very frequently, and thus isn't a high priority. A cert denial is definitely not at all a judgment on the merits of an issue. (Well, almost never.)

Sometimes even when cert is denied, you can still get comments by the Justices. Most often, it's because someone on the court feels strongly that cert should have been granted. But today, there was a slightly different comment. Today, SCOTUS denied cert on a case out of Texas involving a drug conspiracy conviction. The defendant's argument at trial was that he was unaware of what his companions were up to. Which prompted the prosecutor to say, "You've got African-Americans. You've got Hispanics, and you've got a bag full of money.  Does that tell you -- a light bulb doesn't go off in your head and say, 'This is a drug deal?'"

Oh boy, oh boy. What an awful, awful thing to say. What a blatantly racist, atrocious thing to say. I knew that deep down in places we don't talk about at parties that some people still think this way. But it's really shocking to see it in print, especially to know it's the line of thought a federal prosecutor used to convict a guy on a conspiracy charge. The defendant was convicted and appealed that conviction, arguing at least in part that the prosecutor's blatant racial bias prejudiced him and violated his constitutional rights to a fair trial devoid of racial profiling.

With the cert denial, though, Justices Breyer and Sotomayor felt compelled to say something about how appalling the comment was and that a cert denial should not in any way, shape, or form be taken as somehow condoning the comment. The two Justices went on to say they were troubled by the Justice Department's initial failure to acknowledge the impropriety of the comment. (It's a sad truth that many prosecutors knee-jerk reaction is to say the comments are not misconduct when they would be better served by admitting the comments were wrong, but then arguing that they didn't affect the overall outcome of the case.) The comment by the two Justices was short, sweet, and well-stated. Probably didn't take them any time at all.

The fact that these two Justices issued a comment on this cert denial made the news. What struck me, though, and what bugs me now is that only two of them signed on to this statement. Where are the others? Ginsburg at least? Why didn't all 9 Justices have the decency to condemn the prosecutor's statement? (Or 8 if Kagan was off the case for having been at the Justice Department while the case was active.) I know I'm living in a dream world, but I want to see completely inappropriate conduct being called out. It's an easy, cowardly way out to quietly deny cert and say nothing. We all know what this prosecutor said is beyond the pale. And once two Justices were already committing to writing a short comment, it wouldn't have cost any of the others much to sign on. Let Sotomayor do the work and take some of her credit. Easy. But they didn't. 7 (or possibly 6) Justices chose to just let this go. That troubles me.