Lower Courts on Supreme Court Signaling

Debates over signaling, or unconventional precedential guidance to lower courts, played an important role in the same-sex marriage litigation leading up to Obergefell. Now, signaling is back thanks to religious accommodation litigation concerning the Affordable Care Act’s contraception mandate. Remarkably, lower courts have started to develop case law on whether and when signaling is appropriate.

Narrowing the Third-Party Doctrine From Below

The Fourth Circuit made headlines yesterday in United States v. Graham, which holds in part that “warrantless procurement of [cell site location information] was an unreasonable search” in violation of the Fourth Amendment. There’s a lot going on in the Graham majority and dissent, and I recommend Orin’s ongoing posts on the merits. But it’s also interesting to consider Graham’s treatment of Supreme Court precedent regarding the “third-party doctrine.”

In my view, much of the disagreement between the majority and dissent in Graham is about whether to adopt the best reading of the Supreme Court’s third-party precedents or, instead, to narrowly read those precedents in light of new factual developments, other Supreme Court precedents, and the lower-court judges’ own first-principles views of the law. In this respect, Graham is hardly anomalous. When doctrines become out of date, the Court sometimes encourages lower courts to engage in narrowing from below, thereby facilitating the Court’s own reconsideration of precedent. The third-party doctrine is properly viewed as such an area.

Another Supreme Court Signal: Hittson v. Chatman

Today’s orders list provided an especially clear instance of an attempted Supreme Court signal. In Hittson v. Chatman, Justice Ginsburg, joined by Justice Kagan, concurred in the Court’s denial of certiorari in a habeas matter. In effect, Ginsburg told the Eleventh Circuit how to rule in a pending case. But as with many other potential signals, Ginsburg’s message should perhaps be taken with a grain of salt.

Is Heller Being Narrowed From Below?

Last week, Justice Thomas dissented from the Court’s denial of certiorari in the Second Amendment case Jackson v. San Francisco. Joined only by Justice Scalia, Thomas argued that San Francisco had adopted a firearm regulation substantially identical to the one struck down in Heller v. District of Columbia. The most interesting feature of the case was Thomas’s allegation that the decision below is an example of a much broader pattern. According to Thomas, “lower courts, including the ones here, have failed to protect” the right to bear arms and so have drained Heller of practical effect. If Thomas is right, then Jackson provides an important example of what I’ve called “narrowing from below”—that is, of lower courts narrowing higher-court precedent.

Barkes, Sheehan, and The Qualified-Immunity Docket

Last week, the Supreme Court summarily reversed a denial of qualified immunity in Taylor v. Barkes, a tragic case involving an alleged failure to implement adequate suicide prevention protocols in prison. As Howard has already noted, Barkes follows on the heels of the Court’s recent qualified-immunity decision in San Francisco v. Sheehan and offers further evidence of the Court’s growing determination to protect officials from civil liability. Of special note, Barkes seems like the latest application of a new and more general claim put forward in Sheehan: erroneous denials of qualified immunity are so important as to justify error correction by the Supreme Court.

Justice Thomas on Signaling in SSM Cases

In a few posts, I’ve discussed Supreme Court “signals,” defined as instances when “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.” One of my examples had to do with the  Court’s unusual cert orders in same-sex marriage cases, which seemed like a signal that the challengers had very strong cases indeed. Today, the idea of a “signal” in this area became quite salient, as Justice Thomas expressly referred to signals in criticizing the Court’s latest same-sex marriage order.

On Not Creating Precedent in Plumley v. Austin

A couple weeks ago, Justice Thomas, joined by Justice Scalia, issued a dissent from denial of cert in Plumley v. Austin, a criminal justice case. In the main, Thomas’s opinion argued that the decision below was wrong on the merits and conflicted with other circuit decisions. But, in a passage that has sparked some debate, Thomas also argued that the Fourth Circuit below had erred in declining to publish its opinion, allegedly in order to “avoid creating binding law for the Circuit.” Thomas’s opinion may be a signal about circuit publication practices and, more specifically, about the proper direction of future Fourth Circuit jurisprudence.

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.

Should Lower Courts Facilitate Supreme Court Review?

Last week’s oral argument in Dart Cherokee Basin Operating Co. v. Owens featured a lot of discussion about whether a circuit court had erred by insulating a legal ruling from further review. This possibility raises an interesting question: Do the courts of appeals generally have a responsibility to facilitate Supreme Court review?

The Reluctant Dissenter

On Monday, the Ninth Circuit issued a 6-5 en banc decision granting habeas relief for a Miranda violation. The case, Sessoms v. Grounds, has garnered attention in part because Chief Judge Kozinski wrote an opinion “regretfully dissenting” from the court’s judgment. Remarkably, Kozinski voted to deny habeas relief, even though he was “glad” that his own view of the law lost. Kozinski’s reluctant dissent provides a window into how judges struggle with the sometimes conflicting demands of law and justice.