For the second time in two weeks, the Supreme Court’s denial of certiorari in a class action case—this time, Martin v. Blessing—has garnered significant attention because of a separate statement by a Justice concerning the denial of review.

In Martin, the petitioner challenged the policy of one federal judge in the Southern District of New York to condition appointment of class counsel on the agreement by that counsel to “make every effort to assign * * * this matter [to] at least one minority lawyer and one woman lawyer with requisite experience.” Specifically, in Martin—an antitrust class action against Sirius XM Radio—Judge Baer specified that class counsel “should ensure that the lawyers staffed on the case fairly reflect the class composition in terms of relevant race and gender metrics.”

After the class action against Sirius settled, some objectors appealed Judge Baer’s approval of the settlement—and specifically, his order regarding the diversity of class counsel. The Second Circuit held that the objectors lacked standing because “they never contend that class counsel’s representation was actually inferior” to the representation that would have been provided absent a diversity mandate.

One of those objectors—represented by Ted Frank of the Center for Class Action Fairness—filed apetition for certiorari seeking review of the Second Circuit’s holding that he lacked standing to challenge Judge Baer’s order regarding class counsel’s staffing of the case.

The Supreme Court denied review. But Justice Alito took the unusual step of issuing a separatestatement respecting the denial of certiorari (pdf) in an effort to dissuade Judge Baer (and other judges) from imposing a diversity requirement for appointed class counsel.)

Justice Alito explained that the “uniqueness of” Judge Baer’s “practice weighs against review by this Court, but the meaning of the Court’s denial of the petition should not be misunderstood.” That is because, in Justice Alito’s view, it is not only “doubtful that the practice in question could survive a constitutional challenge,” but also likely that the practice runs afoul of Federal Rule of Civil Procedure 23(g), which regulates the appointment of class counsel.

According to Justice Alito, because “any deviation from the criteria” in Rule 23(g) for selection of class counsel “may give rise to suspicions of favoritism,” it “would be intolerable if each judge adopted a personalized version of the criteria set out” in the rule. Justice Alito acknowledged that Rule 23(g) has a catch-all allowing the district court to consider “any . . . matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” But from his perspective, it “seems quite farfetched to argue that class counsel” could not do so “unless the race and gender of counsel mirror the demographics of the class.” And he opined that Judge Baer’s rule would be impossible—or at least very expensive—to administer in cases in which the demographics of the class were unknown.

Finally, Justice Alito closed by warning that, although “we are not a court of error correction,” if “the challenged appointment practice continues and is not addressed by the [Second Circuit], future review may be warranted.” That’s about as clear a shot across the bow as you can get from a single Justice.

Incidentally, the denial of review in Martin v. Blessing brings the objector’s lawyer, Ted Frank of the Center for Class Action Fairness, to 0-2 in seeking Supreme Court review this term. (We’ve discussedthe Court’s earlier denial of Ted Frank’s cert. petition seeking review of the cy pres component of the Facebook class action.) But in each loss, a Justice has issued a separate statement intimating that the lower court had erred. That’s pretty remarkable.