Longtime readers may be interested in my recent essay on SCOTUS Repeaters, or cases that the US Supreme Court hears more than once. Here’s how my essay starts:
It’s every academic blogger’s dream to prompt an empirical study. Well, maybe not. But it was my dream, and Jason Iuliano and Ya Sheng Lin have made it a reality.
Last year, I wrote a blog post that discussed several possible explanations for what I called “SCOTUS Repeaters,” or cases that the U.S. Supreme Court has reviewed more than once. But while my post and its comment thread adduced a surprising number of Repeaters, I lacked more comprehensive knowledge of how frequently Repeaters occurred.
Now, in their illuminating paper, Iuliano and Lin have taken great strides toward identifying every Repeater that has received plenary consideration as a result of certiorari since 1925, discovering over eighty examples. In addition, the authors helpfully divide the resulting set of cases into three basic categories—procedural, supervisory, and incidental—with each category corresponding to a different explanation for the Court’s discretionary decision to exercise full merits review twice in the same case. Thanks to Iuliano and Lin, Repeaters have reached the academic big leagues.
Still, there is more to be done. This response essay explores a fundamental question that Iuliano and Lin raise but don’t fully answer: given that most certworthy issues arise in many cases, why does the Court regularly choose to review the very same case more than once?
Answering this question requires consideration of explanatory factors other than the ones that Iuliano and Lin use to define their three Repeater categories. Moreover, a full understanding of Repeaters requires consideration not just of the “Plenary Repeaters” that Iuliano and Lin study but also “Summary Repeaters,” or cases that are Repeaters by virtue of summary review following certiorari, such as summary reversals. Once these additional possible explanations and cases come into view, we will be in a position to deepen, supplement, and refine Iuliano and Lin’s proposed explanations for why Repeaters come about.
Needless to say, I look forward to seeing even more research about Repeaters and their causes.
First posted on Prawfs. [Note, the excerpt has been modified to match revisions.]
Re’s Judicata 