An interesting theme unites three apparently unrelated cases that I’ve previously blogged about: an obstruction of justice prosecution (Yates), a removal case that poses a riddle of statutory jurisdiction (Dart), and the Sixth Circuit’s recent decision upholding same-sex marriage laws (DeBoer). In short, all three cases implicate the Supreme Court’s ability to send non-precedential signals to lower courts.
Start with the obstruction of justice case. Last week, the Supreme Court heard oral argument in Yates v. United States. As I’ve discussed, Yates involves an obstruction charge relating to the concealment of undersized fish. According to the defendant, the relevant statute prohibits only the concealment of objects that store information, like documents. At the oral argument, several Justices expressed interest in the defendant’s position. The next day, a district judge postponed a sentencing proceeding that implicated the same legal issue. This trial-level case involves alleged concealment of evidence relating to the Boston marathon bombing. The district court apparently wasn’t following a precedential opinion, or anything like one. Instead, simply by saying certain things at oral argument, the Court had effectively (though perhaps unintentionally) signaled that many other, more conventional obstruction prosecutions might be unlawful. So understood, the district court’s behavior is an interesting spin on a routine practice. Trial courts make discretionary timing decisions all the time, and both trial and appellate courts frequently postpone resolution of issues that are pending for decision in higher courts. Usually, however, these decisions are made based on a formal grant of higher-court review—not the substantive tenor of an oral argument.
Next, consider last month’s oral argument in Dart Cherokee Basin Operating Company, LLC v. Owens. For present purposes, the key issue in Dart was whether the Court could reach the merits in a particular kind of case. The main obstacle to doing so was that the circuit court had issued a summary decision, thereby making it difficult for the Court to find that the circuit court had abused its discretion. At argument, some Justices, particularly Justice Kagan, wondered if the Court might somehow convey that circuit courts should start giving reasons in similar cases. I wrote a few posts on this subject, and Scott Dodson commented that the oral argument itself might help prompt lower courts to change their behavior. In other words, lower courts operating in good faith might take a hint and solve the Court’s problem, even if the Court hadn’t issued a precedential opinion to that effect. Significantly, the circuit courts would have to do more than just postpone their rulings, which (as explained above) is a fairly conventional exercise of prudential discretion. To act on the potential signal at issue in Dart, the circuit court would have to write its formal, published decision in a different way—that is, with explanatory reasons. In other words, the circuit court would have to make more law than it otherwise would.
Finally, consider the Sixth Circuit’s recent same-sex marriage decision. The majority opinion by Judge Sutton went on at some length about the Court’s summary decision in Baker v. Nelson. In short, Baker dismissed a request for same-sex marriage rights because it posed no “substantial question.” The Sixth Circuit concluded that Baker stands as precedent until the Court “informs” the lower courts that they are no longer bound. In response, Judge Daughtrey’s dissent relied not just on “doctrinal developments” in cases like United States v. Windsor, but also on the Supreme Court’s October orders denying certiorari in same-sex marriage cases from several circuits. This is an interesting move. While oral arguments and cert decisions don’t constitute precedent or resolve the merits, they might still provide meaningful guidance. The Court has seriously aired the possibility of same-sex marriage rights during an oral argument (Hollingsworth v. Perry), and denied cert in cases where circuits have found same-sex marriage rights (the October denials). So, in the years since Baker, the Court has strongly indicated that the question of same-sex marriage rights is very “substantial” indeed.
The examples above can all be viewed as instances of “signaling.” Signaling isn’t just a matter of helping lower courts predict what a majority of the Justices will do. As discussed about 20 years ago in leading articles by Professors Caminker and Dorf, predictions could potentially (though perhaps inadvisably) be based on a Justice’s group memberships, pre-confirmation statements, or personal statements to the press (like Justice Ginsburg’s remarks in advance of the October denials). In addition, predictions can go to ultimate merits issues, directly contravene precedent, and even arise simply because of a personnel change, without any specific action by a majority of the Court. When signaling occurs, by contrast, the Justices undertake official actions that don’t establish conventional precedent or resolve ultimate merits issues, but nonetheless suggest, perhaps deliberately, some aspect of how lower courts should decide cases. So understood, signaling provides a flexible means of managing lower courts, without directly challenging the conventional view of the Court as an adjudicatory, precedent-making body.
While signaling is a relatively unremarked-on phenomenon, the dearth of commentary on this point may simply reflect changing times. Because it occurs through peripheral actions like oral argument and cert denials, signaling is feasible today largely because of contemporary digital media and the growing culture of Court-watching. Before the internet, it wasn’t really possible for far-flung courts and advocates to keep track of the Supreme Court’s oral arguments, cert decisions, and the like. Indeed, for most of US history it was hard enough for the Supreme Court to exert managerial influence through printed case reports. Now, however, lots of people follow the Court. With its levers of influence multiplied, the Court might naturally explore new opportunities to use those levers.
Should the Justices deliberately engage in signaling, or avoid doing so? And, should lower-court judges feel bound or authorized to act on these signals? I’ll discuss just a couple possibilities here.
Perhaps signaling is advisable only in connection with certain types of legal decisions. For example, we might establish a spectrum with logistical decisions (like setting the date for a hearing) on one end and interpretive decisions (like reading a statute) on the other. Because logistical decisions are highly pragmatic and discretionary, perhaps judges should be more willing to give and take non-precedential signals in that context. On that view, the Yates oral argument provided a good reason for delaying the Boston obstruction hearing, but wouldn’t support any particular interpretation of the federal obstruction laws. The precedential status of Baker might more naturally be viewed as interpretive, and the potential reason-giving obligation canvassed in Dart might fall somewhere in between. Of course, these categories are disputable. Almost every judicial decision is interpreting some body of law, and most interpretations have a discretionary or pragmatic element.
Another salient possibility is that signaling is advisable only when deliberate. Letting the Justices exert greater managerial oversight would likely promote efficiency and uniformity. But unintended signals are almost by definition misunderstandings, and it would be odd to rest an important decision on reasons that the supposed reason-giver never meant to supply. Notably, this approach might recast the circuit courts’ widespread practice of treating well-considered Supreme Court dicta as binding: instead of paradoxically viewing some dicta as precedent (or as a basis for prediction), these courts might instead be treating SCOTUS dicta as a signal. But how can lower courts reliably identify deliberate signals? For example, could a lower court infer that the same-sex marriage cert denials were a signal? Explicit statements during an oral argument would come closer to being a reliable, self-certified signal, though even that falls short of the standard set by well-considered dicta or certain nudge-nudge orders.
One last, stray thought: perhaps there are situations when lower courts send signals in reverse, to the Supreme Court. For example, the postponement of sentencing in the Boston bomber obstruction case may have highlighted how the Court’s decision will have ramifications beyond the fisherman in Yates.