SCOTUS Repeaters

Few cases ever reach the Supreme Court, but some get there twice. Recent examples include Bond v. United States (decided 2011 & 2014) and Zivotofsky v. Clinton/Kerry (2012 & pending). The Court may soon add another example: Horne v. Department of Agriculture, decided the first go-round in 2012.

What to make of these “SCOTUS repeaters”? It’s hard to draw strong conclusions from this unusual if regular phenomenon, but a few interesting possibilities present themselves.

First, maybe it’s just a coincidence. Some cases may just happen to raise two certworthy issues at two different points in time. But the federal circuit courts alone decide (according to one dated statistic) around 35,000 cases on the merits annually; and, even among cases that generate cert petitions, the grant rate hovers at around 1%. So it’s unlikely that too many sequential grants in the same case would result from a random distribution of certworthy issues nationwide.

Second, some cases may involve such complex or extraordinary facts that they keep throwing off new certworthy issues. One example of this may be the Court’s two interventions (in 2006 and 2011) in the long-running bankruptcy dispute pertaining to the estates of Anna Nicole Smith and her wealthy husband. (The court explained that the litigation called to mind the plot of Dickens’s Bleak House.) But some SCOTUS repeaters don’t seem to involve such remarkable facts.

Third, maybe it’s very good lawyering. If you have a lawyer with the wherewithal to file a cert petition, then you are already fortunate. If you have an attorney (or pro se abilities) that can generate a cert grant, then you are getting way above-average representation. And miracle-workers, unlike lightning, can strike twice. Yet members of the Supreme Court bar can only do so much. Even the greatest SCOTUS advocate needs some pretty promising raw material to work with.

Fourth, maybe the Court feels responsible. Will Baude discusses this possibility in connection with the Court’s “shadow” or non-merits docket.  In Williams v. Johnson, for instance, the Court summarily retracted the erroneous verbiage in its prior decision in the case. Apparently, the Court engaged in this error-correction because the Court itself had made the error. Will’s piece also raises the possibility of summary reversals and GVRs that seem responsive to lower-court disobedience. But these aren’t the kind of things going on in merits cases like Bond and Zivotofsky.

Fifth, maybe the Court gets invested, so that the first grant helps with the second. As the Justices review the swarms of cert petitions put before them, maybe petitions from previously decided cases stand out in part because of their familiarity. The Justices and clerks (who study recent opinions) may remember the facts and so take more quickly to a new pitch for cert. Still, the cert process is sufficiently bureaucratized that there has to be a credibly certworthy issue for a repeat petition to get off the ground.

Finally, maybe it’s the second grant that the Court always wanted. A case comes in with a great underlying claim that the Court really wants to hear for one reason or another. But if the decision below ruled on a threshold ground, then the Court might have to clear out that potentially non-certworthy holding before subsequently granting cert on a second pass. Notably, in all three examples that started this post—Bond, Zivotofsky, and Horne—the Court’s first bite at the case involved jurisdictional issues.

Those are my top nominations—are there any that seem better? Also, I’d be curious to hear more examples of SCOTUS repeaters.

UPDATE: It’s not the biggest news from today’s order’s list, but Horne has now officially joined the ranks of SCOTUS repeaters.

Originally posted on PrawgsBlawg.


Filed under Supreme Decision-making, The Roberts Court

2 responses to “SCOTUS Repeaters

  1. Paul Wolfson

    I can think of several other repeaters of considerable significance, including SEC v. Chenery Corp., and Turner Broadcasting System v. FCC. I am inclined to agree with you that often the Court is really interested in the issues in the second decision, but it is necessary to resolve the first before reaching.

  2. Pingback: Fisher Redux: SCOTUS “Is Going To Clean Up The Mess” | Josh Blackman's Blog

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