Does A U.S. Supreme Court’s Certiorari Denial Have Precedential Value?

Finding precedents? (Photo by Marilyn Swanson)

Recently, the U.S. Supreme Court denied certiorari in two cases involving bankruptcy questions:

in Barings L.L.C. v. Ag Centre Street Partnership, Case No. 24-1322 (cert. denied on 11/10/2025), the Question Presented is, “Whether an appellate court can materially alter a consummated plan of reorganization without permitting a new vote of creditors or whether a material alteration by an appellate court requires a vacatur of the order confirming the plan and a new creditor vote”; and
in Avianca Group International Limited v. Burnham Sterling and Company LLC, Case No. 25-25 (cert. denied on 11/17/2025), the Question Presented is, “Whether, for purposes of Section 365(d) of the Bankruptcy Code, the ‘obligation’ of a Chapter 11 debtor under a lease ‘aris[es]’ as soon as the obligation accrues, rather than when payment becomes due.”

Effects of Certiorari Denial

–Controlling Law?

Each of those two cases is on appeal from a ruling of a U.S. Circuit Court of Appeals. And an immediate and undisputable effect of the certiorari denial in each case is this:

the circuit court’s opinion is now controlling law within its own circuit, the same as if no appeal to the U..S. Supreme Court had been taken.

–Additional Precedential Value?

So, an obvious question is:

does the certiorari denial convey any additional value to the circuit court’s opinion as precedent outside its circuit?

The answer is, “No.”

That’s according to the U.S. Supreme Court, which declares in U.S. v. Carver, 260 U.S. 482, 490 (1923):

“The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times.”

Explanation in 1950 Article

A 1950 article in the Michigan Law Review[fn. 1] provides a broader explanation. What follows is a summary of that article.

–Justice Frankfurter

In Maryland v. Baltimore Radio Show, 338 U.S. 912 (1950) (on appeal from a state court judgment), the application for certiorari is denied, and Justice Frankfurter writes an opinion stating that the denial means only that fewer than four members of the court thought that certiorari should be granted, so that the denial carries no implication whatsoever regarding the Court’s views on the merits of the case.

–Purpose

The primary purpose of the Supreme Court’s certiorari jurisdiction is to, “secure uniformity of decision between those courts in the nine circuits,”[fn. 2] and “bring up cases involving questions of importance which it is in the public interest to have decided by this Court of last resort.”

The jurisdiction is not conferred upon the Supreme Court merely to give the defeated party another hearing.

–Purely Discretionary

The writ of certiorari is purely discretionary in nature. It is designed to enable an overburdened tribunal to sift the mass of litigation and choose the cases in which it will entertain jurisdiction so as to maintain its authoritative standing and decide only the most important questions.

–Explanations for Denials

Practical considerations preclude the writing of opinions to explain the grounds for each of the many denials of the writ if the Court is to perform its proper function.

Occasionally, however, the Court states the reasons for denial in order to prevent misinterpretation.

–Under No Circumstances

But in the absence of such an opinion, denial of certiorari is under no circumstances (i) to be considered a decision on the merits by the Supreme Court, or (ii) to have any effect as a precedent.

–Many Grounds for Denial

According to Justice Frankfurter, the writ may be denied for any one of a multitude of reasons, such as:

review may be sought too late;
the judgment of the lower court may not be final;
a decision may not be the judgment of a State court of last resort;
a decision may be supportable as a matter of State law, not subject to review by this Court–even though the State court also passes on issues of federal law;
a decision may satisfy all technical requirements and yet commend itself for review to fewer than four members of the Court;
a case may raise an important question, but the record is cloudy;
it may be desirable to have different aspects of an issue further illumined by the lower courts; and
wise adjudication has its own time for ripening.

Other technical grounds for denying certiorari include:

form of the writ is imperfect;
the showing of a vital question is poorly made; and
vital questions were not passed on by the court below.

The possible grounds for denial are legion.

–A Dangerous Practice

Notwithstanding persistent warnings, bench and bar frequently attach significance to a denial of certiorari on the theory that the only grounds for refusal could have been approval of the lower court’s decision. “That this is a dangerous practice is obvious”:

the U.S. Supreme Court is under no compulsion to recognize what was decided in the lower court as stare decisis; and
at most, conclusions drawn as to the reasons for denial, after a careful study of the record, should be used only as personal information, indicating to the practitioner the chances for success in a future application for certiorari.

Conclusion

Hmmm . . . I’ve always thought a certiorari denial adds an extra precedential oomph to the denied opinion.

Learn something new every day.

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Footnote 1. The article is Edward W. Rothe S.Ed., Appeal and Error-Significance of Denial of Certiorari as Precedent by United States Supreme Court, 49 Mich. L. Rev. 123 (1950).

Footnote 2. The role of maintaining uniformity is particularly important for cases before the U.S. Supreme Court on bankruptcy questions, because of the U.S. Constitution’s requirement that bankruptcy laws be “uniform . . . throughout the United States.”

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