Should En Banc Review Correct Obvious Errors?

There’s recently been a lot of discussion about Kosilek v. Spencer, a 3-2 en banc First Circuit decision by Judge Torruella on whether a prisoner has an Eighth Amendment right to sex reassignment surgery. Understandably enough, most of the discussion has focused on the merits of this dispute and on a dissenting judge’s remarkable suggestion that the majority had responded to “[p]rejudice and fear.” According to Judge Thompson’s dissent, the majority opinion will “ultimately be[] shelved with the likes of Plessy v. Ferguson[,] deeming constitutional state laws requiring racial segregation, and Korematsu v. United States[,] finding constitutional the internment of Japanese- Americans in camps during World War II.”

In this post, I will entirely bracket the merits–important as they are–and focus instead on a procedural issue that actually leads off Judge Thompson’s dissent. In short, the dissent doubted that there was any proper basis for the en banc court to hear the case. That position rested partly on the claim that the case, though “not … unimportant,” was also not of “exceptional importance.” The dissent further argued that en banc review is inappropriate if based on the belief that a panel decided a case incorrectly. To my mind, Judge Thompson is on stronger ground when she insists on a principled explanation of the grounds for en banc review. By contrast, her understanding of those grounds seems unduly limited. In this respect, Judge Thompson’s position offers an interesting point of comparison to Supreme Court practice.

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Filed under "Lower Courts", Cert Stage, Judicial Decision-making

Can Justice Kagan Narrow Heien v. North Carolina?

Yesterday, the Court decided Heien v. North Carolina by an 8-1 vote. Both the holding–that police act constitutionally when they make certain mistakes of law–and the lopsided outcome in Heien call to mind Davis v. United States, which involved the good-faith exception to the exclusionary rule and was resolved 7-2. Heien provides the most recent example of the “other” rule of lenity–that is, the newly ascendant principle that police should get the benefit of the doubt when it comes to ambiguous laws. Heien also shrinks the gap between Fourth Amendment rights and remedies, which now both include consideration of the police’s “good faith.” And then there’s the historical dimension of Heien. So, as expected, Heien is a big decision.

For now, I’d like to focus on how lower courts will construe Heien in light of Justices Kagan’s concurrence, which was joined by Justice Ginsburg. Because she asked the government several skeptical (and characteristically insightful) questions at argument, Justice Kagan’s decision to join the majority may seem somewhat surprising. But the content of Justice Kagan’s concurrence, along with the fact that her vote was unnecessary for the creation of a majority, suggests that she might have been motivated to concur to put her own spin on the decision for the Court. In other words, Justice Kagan’s concurrence might be an example of “aspirational narrowing.” It’s less clear that Justice Kagan’s efforts will be successful.

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Filed under Fourth Amendment, Stare Decisis

The “You, Too” Fallacy Returns

As regular readers know, one of my favorite fallacies is the “tu quoque” or “you, too!” fallacy – that is, the argument that a proposition is wrong because it’s advocated by someone who previously said the opposite. For some reason, this fallacy recently seems to come up in connection with Justice Ginsburg. Tu quoque made another appearance in today’s decision in Dart Cherokee Basin Operating Company, LLC v. Owens–and, once again, Justice Ginsburg was at the center of it.

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Filed under Judicial Rhetoric

Race, Bias, and Doctrine in Warger v. Shauers

This week, the Supreme Court decided Warger v. Shauers, a unanimous decision on the rule against challenging trial jury verdicts based on evidence of jury deliberations. Warger is noteworthy in part because it comes at a time when grand jury decisions are coming under special scrutiny, particularly in cases involving concerns of racial bias. In Warger, the problem of racial bias lurks just beneath the surface—or, more literally, in a footnote just beneath the main text. Warger‘s elliptical reaction to this problem illustrates how the Court translates constitutional principles into rules for normal cases and exceptions for extraordinary ones.

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More Supreme Court Signals

A couple weeks ago, I discussed “Supreme Court Signals.” The main vehicles for signaling that I identified were certiorari denials and Justices’ statements during oral argument. This week, Justices sent what look like two more signals, this time in statements respecting denial.

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Filed under Cert Stage, Nuts and Bolts, Stare Decisis

Is Fisher v. University of Texas a Precedent on Jurisdiction?

As Lyle Denniston recently explained over at SCOTUSBlog, the important affirmative action case Fisher v. University of Texas may soon be headed back to the Supreme Court. This possibility raises an interesting issue of precedent and jurisdiction. The last time that the Court heard Fisher, its published decision ignored certain jurisdictional concerns and remanded for a new merits determination. Could these concerns prove decisive in a sequel decision, or did the Court silently settle the question of jurisdiction in Fisher? 

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Filed under Jurisdiction, Stare Decisis

Narrowing Precedent and the Digital Fourth Amendment

My new paper, “Narrowing Precedent in the Supreme Court,” is now posted online. (Thanks to LTB for publicizing it!)  The basic idea is that the Supreme Court frequently narrows its precedents, including in “liberal” directions, and that doing so is often both legitimate and desirable. In this post, I’d like to make a prediction: in the near future, we are going to see a lot of narrowing in the area of digital surveillance and the Fourth Amendment.

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Filed under Fourth Amendment, Stare Decisis