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?
When the Supreme Court heard and decided Fisher back in 2012-13, jurisdiction was contested. Some commentators insisted that there was no jurisdiction to hear the case, given that the plaintiff had subsequently graduated from another university and that sovereign immunity barred damages. Texas cited these points, particularly an online piece by Adam Chandler. The arguments then seemed to get traction with the Court. At oral argument (with Justice Kagan recused), Justice Ginsburg skeptically asked about standing and Justice Sotomayor asked several pointed follow-ups. Eventually, Justice Scalia spoke up to defend the plaintiff’s assertion of standing.
Months later, the Court issued its decision in Fisher with a surprising 7-1 vote. In a relatively short opinion, the Court somewhat tightened the relevant legal standard and sent the case back to the Fifth Circuit specifically to apply that standard. This result was doubly surprising. The Court’s ruling was quite limited, and there was only one dissenting vote. It seemed like a compromise had been struck.
Recent reporting by Joan Biskupic confirms as much. Based in part on interviews with unspecified Justices, Biskupic claims that Justice Sotomayor circulated a formidable draft dissent that gave the majority pause. Meanwhile, Justice Breyer played good cop in the hope of brokering a deal. It worked. The result was a relatively moderate opinion for the Court with supermajority support. The fact that the Court was simultaneously preparing a decision to invalidate part of the Voting Rights Act probably didn’t hurt the case for incrementalism on affirmative action.
When the case returned to the Fifth Circuit, Texas disputed jurisdiction with new vigor. The first time that the Fifth Circuit heard Fisher, it had found standing; and the Supreme Court hadn’t disrupted that ruling. The Fifth Circuit accordingly felt bound by the “mandate rule,” a “corollary of the law of the case doctrine” that “forecloses relitigation of issues expressly or impliedly decided by the [superior] appellate court.” In his dissent on the merits, Judge Garza agreed that there was jurisdiction. But Judge Garza declined to rest jurisdiction on the mandate rule, since “the Supreme Court has specifically warned against inferring jurisdictional holdings from its opinions not explicitly addressing that subject.”
Should the Supreme Court’s silence on jurisdiction in Fisher be viewed as an implicit decision finding jurisdiction? If so, then the Court would presumably have jurisdiction in the next iteration of Fisher by virtue of precedent, or law of the case. This point is of some practical import. When Fisher last came to the Court some Justices seemed skeptical of jurisdiction, but precedent might now defeat that skepticism.
These issues touch on a point of chronic disagreement among the Justices. The Court regularly says that silent or “sub silentio” decisions aren’t decisions at all, including on points of jurisdiction. This rule makes particularly good sense in cases where the Court might simply have overlooked a jurisdictional problem. As I’ve noted, the Court appears to have recently confronted that situation this term in Dart—and may have supplied another example in last term’s blockbuster decision in Hobby Lobby.
But even if stare decisis doesn’t fully apply to sub silentio holdings, it’s still possible that something of precedential import can be inferred from silence. For instance, the Court has given some weight to sub silentio rulings when it has repeatedly confronted a potential jurisdictional difficulty and nonetheless reached the merits without noting an objection (see Hibbs v. Winn). And Justices have also suggested that sub silentio rulings may have persuasive force when a jurisdictional concern was actually brought to the Court’s attention (see Justice Kagan’s dissent in ACSTO v. Winn). Since the Court has a duty to assure itself of jurisdiction, silence on such matters arguably implies assent.
Fisher is unusual in that it’s very hard to believe that the Court overlooked the relevant jurisdictional issues. Given the questions asked at oral argument, the Court was clearly aware that Fisher posed specific jurisdictional problems. So it seems likely that at least a majority of Justices silently found that there was jurisdiction.
Yet there are still good reasons not to treat Fisher as a jurisdictional precedent, even assuming that a majority silently found jurisdiction. These reasons largely turn on the benefits of adopting a rule in this area. In general, it might be better—more fair, efficient, and transparent—for sub silentio rulings never to qualify as precedent. In most cases, reading oral argument transcripts and amicus briefs will leave plenty of room for debate as to why the Court let a potential jurisdictional issue pass in silence. This problem is particularly severe when litigants try to invoke jurisdictional principles from sub silentio holdings that could have rested on any of several potential theories. Making this kind of review available, even in unusual cases, could multiply litigation costs to little advantage. In Fisher itself, it’s hard to see what would be lost if the Court viewed jurisdiction as an open question–particularly because, if most Justices supported jurisdiction in 2013, they presumably will still do so.
All this points toward a guess as to what happened in Fisher. Perhaps five or more Justices believed that there was jurisdiction, while others were unconvinced. To manage these preferences, the Court may have deliberately avoided making precedent on jurisdiction by not addressing it. This kind of deal would be a bit dodgy, since part of the point of precedent is to force the Court to live with the long-term consequences of its reasoning, rather than brokering a series of ad hoc compromises. But at least the Court would have made sure that a majority believed there was jurisdiction before ordering a remedy. And the Justices who doubted that there was jurisdiction would have avoided endorsing a precedent with which they disagreed. If this guess is right, then the rule against sub silentio holdings may have facilitated compromise.
If the Court hears Fisher for a second time, the merits will naturally take center stage. It will be interesting to see if jurisdictional issues also make a supporting appearance.