As I reviewed the wall of receipts for cert denials, I noticed something of a pattern. In several cases, the Supreme Court denied certiorari over three dissenting votes. Invariably those three dissenters were Justices Thomas, Alito, and Gorsuch, though in some cases Justice Kavanaugh provides the third. Yet, a year or more later, the Court resolved the same or similar issue that was presented in another case. In recent years, the Court has taken to relisting a petition before granting it to make sure there are no vehicle problems. Indeed, some cases are relisted for months at end, only to be granted, like the AR-15 case. But in a handful of cases, the path to a cert grant is a cert denial.
Consider four examples.
In July 2021, the Supreme Court denied cert in Arlene's Flowers v. Washington, over dissents from Thomas, Alito, and Gorsuch. This case had started way back in 2013. Two months later a cert petition was filed in 303 Creative v. Elenis, which was granted in February 2022. In June 2023, the Court ruled that requiring the designer to make a website for a gay wedding violated the Free Speech Clause of the First Amendment. This was the issue presented, and denied in Arlene's Flowers. About two years lapsed between the cert denial and the issue being resolved.
