This week we highlight petitions pending before the Supreme Court that address, among other things, whether the constitutional right to counsel of choice extends to cases in which a criminal defendant’s assets are frozen as part of a parallel civil enforcement action; whether, under the due process clause of the 14th Amendment to the Constitution, virtual contacts can establish specific personal jurisdiction over a nonresident defendant; and whether Section 13(b) of the Federal Trade Commission Act authorizes district courts to enter an injunction that orders the return of unlawfully obtained funds.
Wade v. Kresiler Law, P.C.
19-320 Issue: Whether the “functional equivalence” doctrine applies to nonjurisdictional mandatory claim-processing rules requiring a petition for permission to appeal.
Armstrong v. Securities and Exchange Commission
19-392 Issues: (1) Whether the constitutional right to counsel of choice extends to cases in which a criminal defendant’s assets are frozen as part of a parallel civil enforcement action; and (2) whether the failure to return untainted personal property to a defendant violates the constitutional guarantee of due process.
Shepherd v. Studdard
19-609 Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit erred in finding that a case involving a shooting-through-doorway tactical scenario squarely governed a situation in which deputies faced a knife-wielding suspect on open ground; (2) whether Deputy Kyle Lane’s lack of knowledge created a triable issue of fact as to whether Edmond Studdard was walking; and (3) whether Deputies Erin Shepherd and Terry Reed’s mistaken perception of the distance between themselves and a knife-wielding suspect during a 30-second encounter strips them of qualified immunity.
Wilson v. Cook County, Illinois
19-704 Issues: (1) Whether the Second Amendment allows a local government to prohibit law-abiding residents from possessing and protecting themselves and their families with a class of rifles and ammunition magazines that are “in common use at [this] time” and are not “dangerous and unusual”; and (2) whether the U.S. Court of Appeals for the 7th Circuit’s method of analyzing Second Amendment issues – a three-part test that asks whether (1) a regulation bans weapons that were common at the time of ratification or (2) those that have some reasonable relationship to the preservation or efficiency of a well-regulated militia and (3) whether law-abiding citizens retain adequate means of self-defense – is consistent with the Supreme Court’s holding in District of Columbia v. Heller.
K.G.S. v. Facebook Inc.
19-910 Issue: Whether, under the due process clause of the 14th Amendment to the Constitution, virtual contacts can establish specific personal jurisdiction over a nonresident defendant under the effects-based test of Calder v. Jones, when the relevant online activity is equally accessible nationwide but its content focuses on the forum state and the tortfeasor has knowingly caused the plaintiff to suffer reputational and emotional harm in the forum state, a question left open by the Supreme Court’s decision in Walden v. Fiore.
Joslyn Manufacturing Co. v. Valbruna Slater Steel Corp.
19-917 Issue: Whether the Comprehensive Environmental Response, Compensation, and Liability Act’s six-year statute of limitations for “remedial” work is triggered, as the U.S. Court of Appeals for the 7th Circuit held below, only when the construction of a permanent solution for environmental contamination meets a threshold level of comprehensiveness.
CIC Services, LLC v. Internal Revenue Service
19-930 Issue: Whether the Anti-Injunction Act’s bar on lawsuits for the purpose of restraining the assessment or collection of taxes also bars challenges to unlawful regulatory mandates issued by administrative agencies that are not taxes.
Wood v. Missouri
19-967 Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. This listing occurs without regard to the likelihood that certiorari will be granted. Issue: Whether the Constitution requires that a jury, rather than a judge, weigh the aggravating and mitigating circumstances to determine whether a defendant may be sentenced to death.
On Thursday, February 20, Casetext and SCOTUSblog hosted the second webinar in a two-part series previewing the biggest decisions expected this term at the Supreme Court. Tom Goldstein and Kevin Russell covered President Donald Trump’s tax returns, religious school funding, the future of the Consumer Financial Protection Bureau and faithless electors in the 2020 presidential race. The webinar was co-sponsored by the American Constitution Society and the Federalist Society.
As the justices reconvene today for their first private conference in several weeks, Kimberly Robinson reports at Bloomberg Law that “[t]he second half of the Supreme Court’s current term will be chock-full of high-profile arguments and blockbuster opinions, and court watchers say it’s going to be explosive.” Mark Sherman reports at AP (via How Appealing) that “[t]he court is poised to issue campaign-season decisions in the full bloom of spring in cases dealing with President Donald Trump’s tax and other financial records, abortion, LGBT rights, immigration, guns, church-state relations and the environment,” testing “Chief Justice John Roberts’ insistence that the public should not view the court as just another political institution.”
Amy Howe reports for this blog that last night, with no recorded dissents, the Supreme Court refused to block the execution of Tennessee inmate Nicholas Sutton.
At Fox News, Gregg Re reports that “Former Attorney General Eric Holder on Wednesday openly called for 18-year term limits for Supreme Court justices, lending his support to a push that has gained steam among Democrats amid the Trump administration’s rapid-fire federal judicial appointments — and the possibility of a looming Supreme Court vacancy.”
In an op-ed at Townhall, Mike Davis weighs in on Google v. Oracle America, a dispute over the copyright status of application programming interfaces, arguing that “it is time for the Supreme Court to course correct on Google’s outrageous interpretation of the ‘fair use’ doctrine under U.S. copyright law.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]
At Quartz, Ephrat Livni writes that “[h]appily, the arguments in the parties’ briefs” in U.S. Forest Service v. Cowpasture River Preservation Association, involving the power of the Forest Service to grant rights of way through lands traversed by the Appalachian Trail, “are at times a hoot, which perhaps bodes well for the upcoming hearing and certainly makes for uncommonly fun legal reading.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the respondents in this case.]
In an op-ed at Bloomberg Law, William Bennett Turner shares evidence from Chief Justice John Roberts’ law school days showing that “Roberts does have experience—long ago and not publicly known—with the people’s right to know”; Turner invites the chief justice “to live up to his early First Amendment principles and ensure the kind of transparency all three branches owe the people.”
At Reason, Damon Root maintains that, “[a]pplied on its face, the federal prohibition against encouraging illegal immigration for financial gain” at issue in United States v. Sineneng-Smith “criminalizes a wide range of lawful speech.”
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In 1996, Congress passed the Prison Litigation Reform Act, which tightened up prisoners’ access to federal civil litigation in many ways. The statute was written hurriedly, and rarely does a year go by without a Supreme Court decision addressing some issue of its interpretation. This term’s case is about the PLRA’s “three strikes” provision, 28 U.S.C. § 1915(g). Absent “imminent danger of serious physical injury,” the provision prevents prisoners from filing or appealing a federal civil action in forma pauperis if they have had three or more federal civil actions or appeals dismissed as “frivolous, malicious, or fail[ing] to state a claim.” (For prisoners, IFP status does not waive the filing fee, but rather allows them to pay fees over time, after filing.)
The question in Lomax v. Ortiz-Marquez, to be argued February 26, is what counts as a strike. The lawsuit is the fourth federal action brought by Arthur Lomax, a Colorado prisoner. He lost each of the prior three; the issue now is whether he will be allowed to pursue this one (which alleges that he was unlawfully expelled from a sex-offender treatment program) without prepaying a $400 district court filing fee he cannot afford.
Lomax’s third case was dismissed with prejudice (meaning that Lomax is prohibited from bringing the claim again), in part for failure to state a claim and in part for lack of subject matter jurisdiction. Dismissals for lack of subject matter jurisdiction alone are not PLRA strikes, and as it happens, there’s a circuit split about whether this kind of mixed dismissal counts as a strike. But that’s not before the court here. This case involves the dismissals of Lomax’s first two cases, which occurred under Heck v. Humphrey. Heck sets out a ripeness principle: “[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Heck dismissals are typically entered without prejudice, and this was done in Lomax’s cases. But the U.S. Court of Appeals for the 10th Circuit upheld the district court’s denial of IFP status in this fourth case, holding that the prior Heck dismissals counted as PLRA strikes.
Lomax filed his case, appeal and cert petition pro se, but acquired experienced appellate counsel prior to his cert reply. He and the respondents, Colorado prison officials represented by the state solicitor general, agreed in their cert papers that there is a circuit split about what makes a dismissal a PLRA strike, and in particular whether a dismissal without prejudice is a strike. Nonetheless, in the cert papers, the issue was framed more narrowly: whether Heck dismissals, in particular, are PLRA strikes when entered without prejudice. But in its order granting cert, the court rewrote the question presented: “Does a dismissal without prejudice for failure to state a claim count as a strike under 28 U.S.C. §1915(g)?”
On the merits, Lomax argues that the PLRA’s text, structure and purposes all point in his favor. He underscores that lots of dismissals (those based on sovereign immunity, failure to prosecute, lack of jurisdiction, abstention doctrines) are not PLRA strikes. Lomax maintains that a remediable error—one that justifies dismissal without prejudice—is more akin to those nonstrikes than to merits dismissals of suits that are frivolous, malicious or fail to state a claim. He emphasizes that if a dismissal without prejudice is a strike, even meritorious cases (refiled and litigated to conclusion) could foreclose subsequent access to courts for a prisoner without the means to prepay filing fees.
An amicus brief filed by the MacArthur Justice Center at Northwestern Pritzker School of Law makes the additional argument that any Heck dismissal—whether with or without prejudice—fails to meet the statutory definition of a strike (unless the case was frivolous or malicious) because it is a not a dismissal for failure to state a claim, but rather a dismissal on ripeness grounds. The MacArthur brief acknowledges that the court’s rewritten question presented suggests that a Heck dismissal is a dismissal for failure to state a claim, but urges the court to reserve this question for a case in which it is fully briefed.
For its part, Colorado puts forth a plain text argument: “[D]ismissal for failure to state a claim” covers both dismissals with and without prejudice. Congress, says Colorado, easily could have used the words “with prejudice” to limit what constitutes a PLRA strike. But it did not. Moreover, dismissal for failure to state a claim should be understood to mean the same thing under the PLRA and Federal Rule of Civil Procedure 12(b)(6). Rule 41(b), which covers Rule 12(b)(6) dismissals, effects a presumption that a dismissal “operates as an adjudication on the merits”—that is, is with prejudice—“unless the dismissal order states otherwise.” According to Colorado, this implies that a Rule 12(b)(6) dismissal for failure to state a claim can, in appropriate circumstances, be without prejudice. Finally, the state argues that no great injustice results from this approach, because prisoners are given chances to fix problems in their pleadings prior to dismissal, even when that dismissal is without prejudice.
An amicus brief filed by the Council of State Governments in support of the respondents emphasizes that the court’s interpretation of the three-strikes provision also will determine the appropriate interpretation of 28 U.S.C. § 1915A and § 1915(e)(2)(B)(ii), which instruct district courts to screen prisoner filings and dismiss them if, among other things, they are frivolous, malicious or fail to state a claim. Surely, the council argues, the PLRA’s screening regime authorizes Heck and other nonmerits dismissals. And surely, Congress did not intend to rule out the “benevolence” of a dismissal without prejudice—but if a dismissal without prejudice does not count as a dismissal for failure to state a claim, then the kinder disposition would be unavailable. An amicus brief by 30 states (red, blue and purple) documents the continuing burden on states caused by prisoner lawsuits, notwithstanding the drastic decline in such filings brought about by the PLRA.
All in all, this is a pretty technical set of arguments, and the court may end up regretting its rewritten question, which does seem to assume (prior to briefing on the merits) that Heck dismissals “fail to state a claim.” But it’s certainly available to the court to address the prejudice/without-prejudice issue and not the strike status of Heck dismissals.
It’s likely that the oral argument and opinion will stay firmly focused on the text of the statute. The court has several times emphasized that the PLRA should not be overread. The statute poses significant hurdles to prisoner lawsuits, but the court has insisted that extra-textual hurdles not be added to the textual ones. In Jones v. Bock, for example, the court pushed back against several rules imposed by the U.S. Court of Appeals for the 6th Circuit to define what it means to “properly exhaust” prison grievance procedures, as the PLRA requires. The statute, Jones insisted, authorizes prisons—but not courts—to decide the rules for proper exhaustion. Similarly, in Ross v. Blake, the court read the PLRA’s statement that “such administrative remedies as are available [must be] exhausted” to compel exceptions to the exhaustion requirement when grievance remedies are not available.
But as with so many textual arguments, it’s hard to predict which side the court will find more appealing.
Last month the Supreme Court granted the federal government’s request for permission to enforce a rule known as the “public charge” rule, which prohibits noncitizens from receiving a green card if the government believes that they are likely to rely on public assistance. That ruling put on hold a pair of orders by a federal district court in New York, which had blocked the government from enforcing the rule anywhere in the nation. Tonight the justices, by a vote of 5-4, allowed the government to enforce the rule in Illinois while it appeals an order by a district court there that prohibited the government from enforcing the rule in that state.
Three members of the court’s liberal wing – Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan – indicated that they would have denied the government’s request. Justice Sonia Sotomayor filed a written dissent that was sharply critical of both the federal government and her colleagues. Sotomayor complained that the government had not met the test for a stay of the lower court’s decision: Its “only claimed hardship is that it must enforce an existing interpretation of an immigration rule in one State,” Sotomayor observed, “while an updated version of the rule takes effect in the remaining 49.” And more broadly, Sotomayor stressed, the government “has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited Court resources in each.”
Moreover, Sotomayor suggested, the Supreme Court itself “is partly to blame for the breakdown in the appellate process” by being “too quick to grant the Government’s reflexiv[e] requests.” Sotomayor contrasted the court’s treatment of the government with the treatment of death-row inmates seeking stays of execution. “This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures ‘to raise any potentially meritorious claims in a timely manner.’”
Tonight’s order means that the government will be able to enforce the “public charge” rule in Illinois while its appeal is pending in the U.S. Court of Appeals for the 7th Circuit – which is scheduled to hear oral argument in the case next week – and, if necessary, the Supreme Court.
Court-watchers continue to focus on June Medical Services v. Russo, a high-profile abortion case to be argued on March 4. At Vox, Anna North writes that a visit to “Hope Medical Group for Women, one of the last abortion clinics in Louisiana,” the state whose admitting-privileges requirement for abortion providers is at issue in the case, “is a reminder that in many parts of the country, all that stands between pregnant people and the end of Roe v. Wade is a handful of clinics — most of them small, isolated, and racing to keep up with an increasing number of restrictions that, staff say, have nothing to do with patient care.” At Quartz, Ephrat Livni discusses the debate over precedent joined by “friends of the court” on both sides of the case.
Jordan Rubin reports at Bloomberg Law that “[w]hen he argues this spring at the U.S. Supreme Court [in McGirt v. Oklahoma] that Oklahoma couldn’t prosecute an American Indian for rape committed on Indian land, former acting U.S. solicitor general Ian Gershengorn will have widespread backing from Indian interests by way of the Tribal Supreme Court Project.”
At The Hollywood Reporter (via How Appealing), Eriq Gardner reports that “[o]n Wednesday, all but one member of the Motion Picture Association filed arguments in support of Oracle, the tech giant aiming to punish Google for allegedly infringing computer code to build the Android operating system that’s currently used on more than 2.5 billion mobile devices.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in Google v. Oracle America.]
In an op-ed at The Regulatory Review, Richard Revesz argues that the solicitor general’s arguments in Seila Law v. Consumer Financial Protection Bureau, a constitutional challenge to the structure of the CFPB, “call into question the constitutionality of multi-member agencies because the dividing line that he urges the Supreme Court to accept rests on illusory distinctions.”
We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!
Few lawyers would accuse the Immigration and Nationality Act of being well drafted. The current law was enacted in 1952, but includes bits and pieces dating back to the founding era, along with major new features that are not always well integrated into the whole. In addition to evoking memories of a time when congressional relief for unauthorized migrants was more possible, United States v. Sineneng-Smith offers a master class in interpreting a creaky, complex statutory structure.
Put simply, the issue is this. 8 U.S.C. § 1324(a)(1)(A)(iv) imposes criminal penalties on any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence in is or will be in violation of law.” Is this, as the government argues with the support of a single amicus brief, a narrow provision prohibiting criminal solicitation and aiding and abetting? Or is it, as the U.S. Court of Appeals for the 9th Circuit found and a range of amici argue, a constitutionally overbroad statute criminalizing a wide range of protected expression, including political speech, attorney representation, charitable and religious counseling, support and outreach, and grandmothers urging their foreign-born grandchildren not to leave them?
The case involves Evelyn Sineneng-Smith, who is apparently a law school graduate but not a licensed attorney. She operated an immigration consulting firm with multiple offices in California, New York and Las Vegas between 1990 and 2008. One service offered was helping noncitizens who did not have legal status but were potentially eligible for it “adjust” their status under Section 245(i) of the INA while physically present in the United States. Adjustment (from, say, undocumented to lawful permanent resident, known as a green-card holder) allowed noncitizens to avoid applying for a visa at a U.S. consulate overseas, which poses a serious problem in some cases because the INA prohibits issuing visas to otherwise eligible applicants who were unlawfully present in the United States for specified periods of time.
However, Section 245(i) only applied to people who, in addition to being immediately entitled to a visa, (1) were in the United States as of December 21, 2000, and (2) had a Labor Certification Application filed on their behalf with the Department of Labor by an employer on or before April 30, 2001. People who came after December 21, 2000, or whose certification application was filed after April 30, 2001, could not use Section 245(i). Even though Sineneng-Smith was aware that the program had expired, she continued offering her services.
Sineneng-Smith was convicted of mail fraud for seeking out and accepting fees from clients, unauthorized migrants who were told that the path to a green card began with the filing of a Labor Certification Application, but who had no chance of adjusting their status under the defunct Section 245(i). The government alleged that Sineneng-Smith sought labor certification for nearly 2,000 clients after 2000, but none received a green card. The 9th Circuit found the evidence sufficient and affirmed the mail-fraud convictions in an unpublished opinion.
The government, though, won a conviction on an additional offense, namely, encouraging or inducing unauthorized migrants to remain in the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv). Some of Sineneng-Smith’s clients testified that they would not have remained in the United States except for the assurance that the labor-certification process could lead to legal status. In the 9th Circuit, after the briefs of the parties were filed, the court requested additional briefing on the constitutionality of Section 1324(a)(1)(A)(iv). Judges A. Wallace Tashima, Marsha Berzon and Andrew Hurwitz held that the statute was unconstitutionally overbroad in violation of the First Amendment because it criminalized a substantial amount of protected speech compared to its legitimate scope. The United States successfully petitioned for certiorari.
In the Supreme Court, the solicitor general contends, essentially, that the statute should be narrowly construed. Read that way, the government asserts, Section 1324(a)(1)(A)(iv) is nothing more than a specific example of traditional criminal prohibitions on soliciting, facilitating, and aiding and abetting crime. This seems to be a substantial change of position from what the government argued below; as the government acknowledges, its current view was not reflected in the jury instructions.
The government’s argument might not help it in this case for another reason. Law professor Eugene Volokh argues as an amicus that to preserve its constitutionality, the statute should be interpreted as a solicitation statute. However, he contends that the First Amendment permits criminal punishment only for soliciting crimes, not for soliciting civil violations; in some cases words may be the equivalent of action, but if the action is a civil violation, the words cannot be made a crime. As immigration advocates frequently note, it is generally not a crime for unauthorized migrants merely to be present in the United States. Accordingly, Volokh’s view, if accepted, might well make a government victory on the claim that the statute prohibits solicitation a limited one, perhaps inapplicable even to this case.
Sineneng-Smith insists that the words “encourages” and “induces” in the statute must take on their natural, broad meaning. The government points to other uses of the words “encourage” and “induce” to mean “aid and abet,” as in 18 U.S.C. § 2(a): “Whoever commits an offense against the United States, or aids, abets, counsel, commands, induces or procures its commission is punishable as a principal.” Sineneng-Smith turns these same statutes against the government, invoking the principle of noscitur a sociis, under which one word in a string is construed in accordance with the words around it. Sineneng-Smith argues that in Section 1324, unlike Section 2(a), there is no contextual basis to narrow the plain language, so the ordinary meaning applies: “At bottom, the government’s position would mean that a prohibition against ‘encouraging’ remaining here is not violated by the words ‘I encourage you to remain here’—simply because such a statement would not constitute aiding and abetting or solicitation.”
Sineneng-Smith also argues that Section 1324(a)(1)(A)(iv) must be interpreted in light of the other prohibitions in the same section. 8 U.S.C. § 1324 contains at least four additional prohibitions. It prohibits knowingly bringing in noncitizens other than at a port of entry, transporting those unlawfully present, concealing, harboring or shielding them, or, importantly, aiding and abetting or conspiring to do any of these things. Sineneng-Smith argues, essentially, that once the law prohibits these things, there is no independent role for the provision at issue other than restricting speech.
The case has attracted many amici supporting Sineneng-Smith, including city attorneys, immigration representatives, social service providers, the Cato Institute, the Electronic Frontier Foundation, the Rutherford Institute, the American Civil Liberties Union and the National Association of Criminal Defense Lawyers. All are concerned that the entities they represent or support would be potentially subject to liability under the provision in this case. This concern appears well-founded, in light of statements made by the government in other cases and the Trump administration’s opposition to sanctuary cities and other policies supporting unauthorized migrants.
Whatever happens in this case, it is not likely to resolve the deeper problem illustrated by the statutes at issue. The U.S. Code does not make it a crime for unauthorized migrants to be here, but it does make it a crime to facilitate their presence. Many widespread programs, from municipal ID cards, “know your rights” training for noncitizens and even free public education for unauthorized migrant children seem to facilitate their presence, and therefore arguably violate the law. Yet provisions of the INA offer avenues for relief for some unauthorized migrants to the United States; federal law authorizes and accredits charitable organizations to provide legal services to noncitizens and states to provide them public benefits. Each of these things can be said to facilitate their presence, but it cannot be that conduct authorized by federal law can itself be a federal crime.
In the absence of a clear indication that Congress considers the millions of unauthorized migrants in this country to be untouchable — in which case people would risk a felony charge by selling them food, allowing them onto a bus or taxi or renting them a place to sleep — perhaps the only way the courts will be able to reconcile Section 1324 with other parts of federal law is by interpreting it as primarily applicable to smugglers and their cohorts, rather than to people who encounter unauthorized migrants who are settled in the United States in ordinary commercial, social, religious, charitable and legal contexts. But this case is more likely to be the first in a string of cases raising this issue than the blockbuster that clarifies the area entirely.
Adam Bonica is an associate professor in the Department of Political Science at Stanford University. Adam Chilton is a professor at the University of Chicago Law School. Maya Sen is a professor at the John F. Kennedy School of Government at Harvard University.
Each year, the Supreme Court justices and their clerks pore over thousands of certiorari petitions, but they only grant about 70 of those petitions for oral argument. Not only do the petitions that are granted go on to shape national discourse, but they also address some of the country’s most pressing legal and partisan controversies. This makes understanding what drives the decisions about which cert petitions to grant a subject of frequent debate among advocates and academics.
So what does explain which petitions are granted? Some scholars argue that the court operates as a kind of “principal” overseeing its many “agents” (the lower courts). When lower courts go too far afield, these scholars argue, the Supreme Court steps in to gently (or not so gently) “correct” the lower courts. Other scholars argue that the court uses the cert process as a way to identify and explore cases that are of high legal importance—that is, the justices want to devote their energy to cases that they think will influence jurisprudential development.
An important subtext to these arguments is the significance of ideology. For the court observers who believe that the court is primarily interested in “correcting errors,” ideology is an important proxy for what constitutes an error. Quantitative research has shown, for example, that the court is more likely to grant cert in cases decided by a federal appeals court that is ideologically distant from the Supreme Court itself—suggesting that the justices more closely monitor lower courts that are either much more liberal or much more conservative than the Supreme Court. And, for the court observers who believe that jurisprudential development is driving cert decisions, ideology also matters: Some of the most important cases heard by the court are cases in which the political parties are in conflict.
There is evidence for both of these arguments. But our recent research takes them one step further to develop a new way of thinking about the cert process. We call it the “Odd Party Out” theory of certiorari. The theory predicts that cert is more likely to be granted when two things are true. First, there is a large ideological distance between the two litigating parties. This is because the large ideological distance is evidence of political conflict and evidence of a case’s political salience. Second, there is a large ideological distance between the panel of appeals court judges that decided the case and the party petitioning the court for cert. This is because the large ideological distance raises the possibility of ideological bias against one of the parties. Combing these two intuitions gives us the Odd Party Out theory: Cert is most likely to be granted when the petitioner is ideologically distant from both the lower court panel hearing the case and the respondent.
It helps to think about the Odd Party Out through an example. Suppose a case is being litigated between two conservative parties, and that the case is being decided by a fairly liberal appeals court panel—perhaps a particular panel in the U.S. Court of Appeals for the 9th Circuit. In this case, the panel is the Odd Party Out. Without more information, it would be reasonable to think that it is unlikely that cert will be granted. Because even though a liberal panel may be biased against conservative litigants, it is not obvious that this matters when both parties share the same ideology.
Next, instead suppose that the case was between a conservative party and a liberal party. And further suppose the liberal panel rules in favor of the conservative party and against the liberal party. The liberal party then petitions for cert. In this case, the respondent is the Odd Party Out. (i.e., the petitioner and the panel are both liberal, but the respondent is conservative). Knowing nothing else about the case, it seems unlikely that this case would be granted. After all, the conservative party won even though the deck was stacked against it.
Finally, suppose the liberal panel rules in favor of the liberal party and against the conservative party, and it is the conservative party that is petitioning for cert. In this case, the petitioner is the Odd Party Out. (i.e., the petitioner is conservative, but the panel and respondent are both liberal). Here, it seems much more likely cert will be granted. Although the ruling may be totally legitimate and well-grounded in the law, an external observer might also see a risk of ideological bias: After all, liberal panels are naturally inclined toward liberal causes.
The three scenarios illustrate the core intuition of the Odd Party Out theory. In the working paper we just released, we test this theory using one of the largest data sets on Supreme Court cert petitions yet assembled by academic researchers. These data include all cert petitions from federal courts of appeals filed from 2003 to 2015. To determine ideology, we matched the lawyers and lower court judges to measures of ideology from the largest database of political contributions, the Database on Ideology, Money in Politics, and Elections. (In the paper, we show that lawyers’ ideologies are a good proxy for the ideologies of the parties that they represent at the Supreme Court.)
Probability of cert based on whether parties are an “Odd Party Out”
Click to enlarge.
Our analyses show very strong support for the Odd Party Out theory. In the universe of cases for which we have complete ideology data, as the above figure shows, the Supreme Court granted roughly 6.6 percent of cert petitions from appeals courts for either oral argument or as a GVR (Grant, Vacate or Remand order). As expected, the probability of cert is lower when the panel or respondent is the Odd Party Out. But, importantly, this baseline grant rate was roughly 3.7 percentage points higher when the petitioner was an Odd Party Out, which we can see in the column to the right. Given the low probability of cert petitions’ being granted, this translates into roughly a 56 percent increase in the probability that a cert petition was successful.
In addition to the raw data supporting our theory, when we estimate regressions that control for a range of relevant factors, we still find an increase of 2.2 to 3.1 percentage points in the probability that cert was granted when the petitioner was an Odd Party Out. For comparison, our analyses show that the probability of cert was 3.9 percentage points higher when the petition arose from a case that had a dissent at the circuit court level and 4.2 percentage points higher when the petition arose from a case that had been heard en banc, or by the entire court of appeals. This makes the presence of the Odd Party Out roughly as predictive of cert as these factors.
So, is whether the petitioner is an Odd Party Out the only thing that matters for predicting cert? Of course not. The standard set of considerations that Supreme Court-watchers expect will matter are obviously important. These include the presence of circuit splits, the decision by the lower-court panel to hear the case en banc, whether a circuit court judge wrote a dissent and whether the solicitor general filed the petition. However, the presence of an Odd Party Out is another case characteristic that provides information to the justices, and is thus another factor for court-watchers to keep an eye out for. And, as our country becomes more polarized, we suspect that the Odd Party Out theory will become even more predictive of cert decisions.
Today the Supreme Court released the calendar for its April argument session, the final argument session scheduled for this term. During the April session, which begins on April 20 and ends on April 29, the justices will hear eight hours of oral argument over six days. The session will include several high-profile cases, including a return to the dispute over the status of land set up as a reservation in eastern Oklahoma for the Creek Nation in the 19th century, two challenges to “faithless elector” laws and a challenge to the Trump administration’s expansion of the conscience exemption from the Affordable Care Act’s birth-control mandate.
A full list of the cases scheduled for oral argument in April, along with a brief summary of the issues presented in each case, follows below the jump.
City of Chicago v. Fulton (April 20): Whether the Bankruptcy Code’s automatic stay requires creditors to turn over repossessed property as soon as a debtor files for bankruptcy.
McGirt v. Oklahoma (April 21): Whether land that was set up in the 19th century as a reservation in eastern Oklahoma for the Creek Nation remains a reservation for purposes of a federal law that requires some major crimes committed on a reservation by or against Indians to be prosecuted as federal crimes.
Texas v. New Mexico (April 21): Dispute between New Mexico and Texas over the waters of the Pecos River.
Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania (consolidated for one hour of oral argument on April 29): Whether the expansion of the conscience exemption from the Affordable Care Act’s birth-control mandate violated the Affordable Care Act and the laws governing federal administrative agencies.