Last week’s oral argument in Dart Cherokee Basin Operating Co. v. Owens featured a lot of discussion about whether a circuit court had erred by insulating a legal ruling from further review. This possibility raises an interesting question: Do the courts of appeals generally have a responsibility to facilitate Supreme Court review?
Here’s some background (see also here). In Dart, a district court issued a statutory holding, and a court of appeals summarily denied discretionary appellate review. The Supreme Court then granted cert in the hope of reviewing the statutory merits. But the Court arguably has jurisdiction only over the circuit court’s discretionary decision to deny appellate review–and that decision was issued summarily, without any reasoning. The court of appeals has thus created a hurdle to Supreme Court review of the underlying merits issue. During oral argument, several Justices worried that the underlying merits issue might persistently evade higher review.
The point came up most pointedly when Justice Kagan suggested that, in dismissing Dart, the Court might give the circuit judges a kind of helpful hint: “[I]f and to the extent that the Tenth Circuit wants in the next case to make a decision on the merits, and if and to the extent that the Tenth Circuit wants in the next case to make a decision on the merits when it denies an appeal, it should say so, so as not to insulate that decision from review.” The emphasis in that last sentence is of course mine, but Justice Kagan herself soon underlined the point: “That seems like a fair thing to say to the Tenth Circuit. Don’t insulate your merits decisions from review.” In other words, circuit courts should err on the side of creating a clean vehicle for cert. This purported responsibility to facilitate review would cut against “cert proofing”–that is, efforts by some (not all) lower courts to insulate their rulings from higher-court review, such as by obscuring the legal basis of decision or adding alternative grounds.
Facilitated review seems like an idea that any Justice should love, as it would allow the Court to waste less time DIG’ing cases (as might happen in Dart) and waiting for clean vehicles. As a result, the Court could establish nationwide rules more often and more quickly. Even the quality of the Court’s decisions might improve. With the benefit of lower-court facilitation, the Justices would have more resources to focus on the merits, a clearer idea of just what was decided below, and more thorough reasoning to consider. This way of thinking may help explain the Court’s occasional practice, prominently opposed by Justice Scalia, of GVR’ing simply for purposes of clarification, without finding a merits error: if there is a general duty to facilitate review, then an obscure decision could in itself be viewed as a kind of error warranting reversal.
In other contexts, Court has responded to the threat of cert-proofing by adopting doctrines that arguably assume a duty of facilitated review. Perhaps the most salient example is Michigan v. Long, which adopted a plain statement rule: only clear reliance on an adequate and independent state-law ground can insulate a state-court decision from Supreme Court review of a federal question. If applied in Dart, similar reasoning might support a presumption that the court of appeals relied on the district court’s statutory grounds, rather than its own discretionary choices. Alternatively, the Court could look to qualified immunity doctrine and Camreta v. Greene, where the Court (per Justice Kagan) heard an appeal from a party who both disputed the circuit court’s merits ruling and prevailed in the circuit court. In the Camreta Court’s view, the normal rule against hearing prevailing parties had to be altered in the qualified immunity context, for otherwise the day for merits review “may never come.”
Still, there’s cause to think twice about facilitated review. Things that prevent or greatly delay the Court’s consideration of recurring issues tend to be systemic, not idiosyncratic—and systemic factors are curbed in many ways. In the Dart argument, Justice Kagan herself made a similar point. It was “a little extreme to say” that the district court’s merits ruling “may never be corrected,” Justice Kagan suggested. The relevant circuit has new judges beyond the eight who denied review, and “[m]aybe even those eight will think twice about it the next time around.” That line of reasoning suggests that the circuit court in Dart actually had good reason to rule summarily: taking the long view, not much would be lost by frustrating Supreme Court review in this one case. What’s more, the summary decision in Dart arguably showcases the virtue of minimalism, as the circuit court was able to act quickly without making new law. If the circuit court had had to explain itself, it would have made more law, which (to avoid error) would have called for the expenditure of additional resources. So at least some vaunted principles of judicial decision-making actually counsel in favor of precisely what the circuit court did.
Perhaps the duty of facilitated review is just another example of the recurring tension between the Supreme Court’s role as a traditional court deciding one case at a time and its more modern role as the operational manager of a vast judicial system crying out for guidance. Yet the duty of facilitated review is noteworthy in at least this way: it would be an example of the Supreme Court not only changing the way that it decides cases for itself, but also asking lower courts to change the way they conduct their own affairs.