Justice shopping on the emergency docket?

Over the past year, I have written about the emergency docket, and each time the analysis has centered on substantive applications over such issues as whether agency heads can be fired or whether election maps stand. But don’t forget there are two other categories of emergency applications: death penalty applications and refiled applications. Today, we are going to focus on refiles, which you may or may not know exist (they certainly do not generate much attention in the popular press).

A refiled emergency application, also called a renewed application, works like this. Each justice is assigned to oversee a particular circuit, and an emergency application first goes to the circuit justice for the circuit from which the case comes. Say an application from Wisconsin is filed with Justice Amy Coney Barrett, the circuit justice for the U.S. Court of Appeals for the 7th Circuit, and Barrett denies it. Under the Supreme Court’s rules, that is not the end, however. The applicant may refile the same application with any other justice, whether or not that justice has any connection to the case. In our example, let us say the applicant takes it to Justice Clarence Thomas, the circuit justice for the U.S. Court of Appeals for the 11th Circuit. From there, most refiles follow a similar path: the docket notes that the case is distributed for conference (about 74% of refiles), referred to the full court, and then denied. (Of the remaining refiles, about 6% arrive over the summer recess and are placed on the justices’ “Summer Reapplications List,” and the rest are referred to the court directly.)

Regardless of the procedural path, the result is the same. Across the 408 applications refiled and referred to the full court from 2000 through 2024, zero were granted. That’s right. Zero. In other words, an applicant who has been told “no” by one justice and renews before another is, on this record, asking for something the court has not granted in at least 24 years.

Yet refiling still happens, and more often than you might guess. Indeed, renewed applications make up roughly 19% of the emergency docket, a routine feature of how it operates. What makes them of further interest is the choice built into the process. A litigant who has been denied gets to pick the next justice and can pick anyone. So, who do they pick?

Who gets the refiles

Justice Sonia Sotomayor receives the most refiles of any justice, by a wide margin. The obvious question is whether that is just volume. Some justices sit longer, and some oversee busier circuits that produce more emergency applications to begin with. If Sotomayor simply had more chances to be in the right place, the imbalance would mean nothing.

But, remember, a refile is not assigned. It is chosen. Circuit volume decides who issues the first denial, the justice the application reaches by geography. It says nothing about where the application goes next, because the litigant, having been told no, picks the second justice, and the rules allow them to pick anyone. So, the right comparison is not how many cases a circuit generates. It is what would happen if every denied litigant chose a second justice with no preference at all, drawing a name randomly from the justices who happened to be on the bench at the time.

Do that, and Sotomayor’s name comes up about 31 times across the dataset. She actually received 73, more than double what an indifferent choice would produce, the largest such gap on the court. The next closest, Chief Justice John Roberts, received 59 against an expected 38.

Tenure does not explain it either. Sotomayor received 4.56 refiles per term on the bench. Justice Stephen Breyer, who sat longer than she has, received 0.77. Justice Elena Kagan, who has been her colleague for almost her entire tenure, received 0.73. Sotomayor draws six times the refiles per term that Breyer and Kagan did. Whatever is pulling these applications toward her, it is not that liberal justices attract refiles and it is not that she has been on the court for the recent surge in emergency litigation. It is specific to her.

Nor is it a handful of persistent filers running up the count. The 73 applications come from almost as many distinct litigants. Only two parties refiled to her more than once, and neither did so more than three times.

One hint of what may be going on: If litigants are shopping for a justice they expect to be friendlier, the flows should cross from the appointees of one party to the other (that is, if a litigant is rejected by a Republican-appointed justice, they would then file with a Democratic-appointed one, and vice versa). And that is largely what happens in both directions. The two largest refiling flows on the entire docket both end at Sotomayor and both begin with Republican appointees: 18 applications denied by Justice Clarence Thomas and 16 denied by Justice Samuel Alito were renewed before her. The reverse holds too. The heaviest flows the other way, 11 applications each, run from Justice Ruth Bader Ginsburg to Justice Antonin Scalia and from Justice Elena Kagan to Thomas. Across the whole docket, 62% of refiles cross from one party’s appointees to the other.

Of course, none of this tells us anything about how Sotomayor actually treats these applications. They are referred to the full court and denied, like all the others. What it tells us is how litigants think. Denied once, choosing where to turn next, they behave as though the identity of the second justice matters, and they sort along precisely the lines of perceived sympathy that the theory of justice shopping would predict. They are wrong about the outcome. But the behavior is real, it is patterned, and it points overwhelmingly in one direction.

If litigants are choosing Sotomayor, the question is what they think they are getting. The data cannot say, only that they are choosing her. It could be reputation. Sotomayor has dissented from more denials of emergency relief than any other justice, and, in a July 2025 YouGov survey, was the most favorably viewed justice on the court. A litigant denied once might read her as the one most likely to be receptive to them the second time. Roberts is a different story, and a distant second. He may simply draw the litigants who go to the person in charge, the chief justice, less justice shopping and more asking to speak to the manager. Both are guesses, and the data shows only that litigants act on some perception of the justices, not that the perception changes the result.

What are they asking for

What are these applications about? Between the 2014 and 2022 terms, where issue area information is currently available, criminal procedure makes up nearly half of refiled applications. Sotomayor’s refiles are mostly these criminal cases, plus a cluster of foreclosure disputes such as homeowners renewing against their lenders. These are not quite the cases that make headlines.

The people who refile run a wide range. At one end is the represented litigant making a targeted, informed play. In September 2021, Alito denied an emergency application filed for a Louisiana homeowner facing foreclosure. The next day, her lawyer, a member of the Supreme Court bar, refiled it before Sotomayor, and said why: the application “squarely addresses” Sotomayor’s concurrence in a recent bankruptcy case, in which she had flagged a question the court left open. Mindful, he wrote, “that renewals are disfavored,” he cast this one not as a rehash but as an opportunity to fill the gap she had identified. The case was distributed for conference and referred to the court in October and denied in November.

At the other end is the pro se filer with no lawyer. In a 2022 case, an applicant refiled before Justice Neil Gorsuch in what he styled a habeas case, asking the court to undo an Arizona protective order that barred his contact with a person he said was in danger. He used the refiling to lecture the clerk’s office, flagging a “sloppy” error in an earlier letter, wondering whether the clerk had “secret orders to be extraordinarily strict” with him, and then thanking the office because a delay had helped his case. Like every other refile, it went to the full court and was denied.

A bar member with a citation and a pro se filer with a grievance, the same maneuver from opposite ends of sophistication, and the same one-line denial for both. Whatever else divides the people who refile, the instinct to try a second justice, and the result of trying, do not.

It is happening more

Refiling also appears to be on the rise. After a dip in the late 2010s, renewed applications surged: 32 in both 2023 and 2024, the highest counts in the dataset and above even the mid-2000s peak. Whatever is driving the broader growth of the emergency docket is pulling refiles up with it.

So what does this tell us?

None of this changes a single outcome. Every refile in the data ends the same way, distributed, referred, denied. What the numbers show is not a path to relief but a pattern in how people look for one. Denied by one justice, they choose another, and they choose along lines that look a lot like perceived sympathy, toward Sotomayor and more often than not across party lines from whoever denied them. It is a small window into how litigants think the court works. They behave as though the individual justice is what matters. On a refile, the one thing the data is certain about is that it does not.