Should En Banc Review Correct Obvious Errors?

There’s recently been a lot of discussion about Kosilek v. Spencer, a 3-2 en banc First Circuit decision by Judge Torruella on whether a prisoner has an Eighth Amendment right to sex reassignment surgery. Understandably enough, most of the discussion has focused on the merits of this dispute and on a dissenting judge’s remarkable suggestion that the majority had responded to “[p]rejudice and fear.” According to Judge Thompson’s dissent, the majority opinion will “ultimately be[] shelved with the likes of Plessy v. Ferguson[,] deeming constitutional state laws requiring racial segregation, and Korematsu v. United States[,] finding constitutional the internment of Japanese- Americans in camps during World War II.”

In this post, I will entirely bracket the merits–important as they are–and focus instead on a procedural issue that actually leads off Judge Thompson’s dissent. In short, the dissent doubted that there was any proper basis for the en banc court to hear the case. That position rested partly on the claim that the case, though “not … unimportant,” was also not of “exceptional importance.” The dissent further argued that en banc review is inappropriate if based on the belief that a panel decided a case incorrectly. To my mind, Judge Thompson is on stronger ground when she insists on a principled explanation of the grounds for en banc review. By contrast, her understanding of those grounds seems unduly limited. In this respect, Judge Thompson’s position offers an interesting point of comparison to Supreme Court practice.

More Supreme Court Signals

A couple weeks ago, I discussed “Supreme Court Signals.” The main vehicles for signaling that I identified were certiorari denials and Justices’ statements during oral argument. This week, Justices sent what look like two more signals, this time in statements respecting denial.

Yates, A Fishy Case

Next week, the Supreme Court will consider whether a fisherman violated an anti-obstruction provision in Sarbanes-Oxley by throwing illegally caught fish overboard. The case is Yates v. United States, and it’s a weird one.

Should Apprendi Apply to Substantive Reasonableness Review?

A couple weeks ago, the Supreme Court narrowly denied cert in Jones v. United States, which raised an important Sixth Amendment sentencing question—namely, whether it is constitutional for judge-found facts to render a defendant’s sentence substantively reasonable. (Here’s some coverage from Doug Berman on Sentencing Law and Policy and more from Will Baude at the Volokh Conspiracy.) Dissenting from the Court’s denial of cert, Justice Scalia suggested that substantive reasonableness review raises fatal constitutional problems under cases like Apprendi v. New Jersey. But I’m not so sure.

Who Is Justice Ginsburg Talking To?

Justice Ginsburg recently offered some surprising public remarks on the pending same-sex marriage petitions currently before the Supreme Court. (H/t Dale Carpenter at VC.) In particular, Justice Ginsburg suggested that the Court should not (would not?) grant the currently pending same-sex marriage petitions at the end of the month because, in her view, there is no post-Windsor circuit split. As Lyle Denniston has noted, discussing pending cases in this way is highly unusual. Why would Justice Ginsburg take this unusual step?

No Grants From the Long Conference?

The Court’s new policy of automatically re-listing cert petitions before granting them raises an interesting question: will the Court’s first conference of the new term (the “long conference”) generate any cert grants? This question has some practical importance and also draws attention to the Court’s frequently opaque operating procedures.

Did the Martinez Sum Rev Apply or Change the Law?

Last week, the Supreme Court issued an unusual pro-criminal defendant summary reversal in the Double Jeopardy case Martinez v. Illinois. According to the Court, summary treatment was appropriate in part because the Illinois courts had failed to adhere to “what we have consistently treated as a bright-line rule.” Ironically, however, Martinez’s main long-term effect may be to increase uncertainty as to whether the rule in question is actually that bright after all. Martinez is an illustration of the marginal legal changes that often accompany what appear or purport to be simple applications of law.

Comments On “Is The Cert Process Fully Adversarial?”

On Monday, I wondered whether the Supreme Court’s apparent decision to auto-relist cert petitions before granting them might, counterintuitively, have something to do with the rise of the Supreme Court bar.  The post prompted some noteworthy comments from members of the Supreme Court bar, and I’d like to draw attention to those comments here.

Is the Cert Process Fully Adversarial?

Today, the Supreme Court continued its recent streak (documented at Scotusblog) of granting cert only in cases that have already been relisted at least once.  Why would the Court suddenly adopt this approach?  One possibility is that the Court has diminished confidence in adversity at the cert stage.