What Do You Think of the Court’s Cert. Practice, Anyway?
Thanks to Tom for that informative post below on the Incredible Shrinking Docket. I’ll bite on the “normative” question: Is there anything the Court ought to be doing differently? Obviously, its docket has been shrinkng in the post-Justice-White era, and even though the new Chief Justice hinted at his confirmation hearing that he might be more receptive to a more generous cert.-grant practice (am I remembering that correctly?), the trend is headed decidedly in the opposite direction.
Tom, and others with an extensive cert. practice, might understandably be reluctant to address the question publicly, but to the extent Court-watchers and practitioners are able and willing, I’d be curious to hear whether there are any particular categories of cases — defined by subject-matter, reasons-for-grant, or otherwise — to which the Court is being insufficiently attentive. Are there a bunch of obvious cert.-worthy cases out there that the Court is inexplicably denying? If so, do they fit any pattern? Does anyone think the Court is getting the balance just about right?
One often hears complaints, for instance, that the Court doesn’t resolve enough circuit splits on statutory questions in commercial cases. But I’ve also heard from other close followers that those complaints are unfounded — that a great deal of money in a handful of cases might turn on certain minor doctrinal ambiguities, but that the questions presented don’t have especially broad importance and/or that the “circuit splits” are incredibly arcane or narrow (to the extent it’s fair to make such topic-based generalizations at all).
What do you all think?
“Are there a bunch of obvious cert.-worthy cases out there that the Court is inexplicably denying?”
For a very long time (throughout the post-Justice-White era, now that you mention it) the Court has inexplicably failed to correct the Ninth Circuit on its surreal misinterpretation of the procedural default rules on habeas corpus. That is rather odd, because the Court is clearly not shy about reversing the Ninth generally or on habeas in particular. Why they ignore this one problem, while huge resources are squandered in pointless litigation over whether a state rule is “strictly” enforced, is something of a mystery.
Comment by Kent Scheidegger — November 30, 2006 @ 8:27 pm
Call me crazy, but I think that the Court should use the additional time to do more “error-correcting” - granting cases (with or without oral argument) simply because the appellate court (usually federal) is wrong wrong wrong, without there necessarily being a fascinating or difficult sort of question.
They find time to do this to the Ninth Circuit often enough, and often without argument, even in cases of no great doctrinal importance. Other courts could use their share of that treatment.
We’ve (by which I mean repeat practitioners in the appellate courts) all had cases in which we think that the appellate court is perfectly obviously wrong wrong wrong wrong. Sometimes we’re right in feeling that way. By doing more error-correcting, the Supreme Court would be performing a valuable service of (a) doing justice in individual cases and (b) hinting that sometimes the Circuits should be more careful.
Don’t get me wrong; any of us, as Circuit Judges, would find it hard to be right all the time given how swamped they are with cases, and so I don’t mean to criticize them too much for being patently wrong sometimes. But a little error-correcting is good for anybody.
Comment by Sam Heldman — November 30, 2006 @ 8:31 pm
Given the strictures of AEDPA, I think the Court has an obligation to review more federal constitutional issues arising in state criminal appeals and state habeas proceedings.
Roger Friedman
Comment by r.friedman — November 30, 2006 @ 10:32 pm
Roger Friedman suggested in a comment to Tom’s post, that Justices may be using their cert. vote strategically — voting to deny cert. in worthy cases, because the likely outcome displeases them.
By the way, has anyone suggested that Justice White had anything to do with the docket being larger, or is it just a coincidence that his departure happened to come at a time when the case load started to shrink?
Comment by Marc Shepherd — December 1, 2006 @ 7:59 am
I recently had this discussion with a professor of mine and he had some interesting comments. In part he thought that the fact that circuit court judges are now relatively uniform in being appointed by republican presidents there just isn’t the divisiveness among the circuits. So until some more truly liberal justices are appointed to the Supreme Court who want to take up some of these issues the Court will continue to heqr a relatively small docket of cases.
Secondly the clarity and reasoning of the Court’s opinions have improved since the Burger court. This is directly related to the time the justices spend on each opinion now as opposed to pre-Rehnquist courts and for the most part has led to better written opinions without so much fracture between justices because the members who write the opinions have a little more time to form coalitions among justices and tweak language etc.
Comment by Matthew Kelley — December 1, 2006 @ 8:40 am
Some of the reduction in argued cases may be due to the cutback in the Court’s mandatory jurisdiction in 1988. See http://www.appellate.net/articles/epitaph.asp. In 1976, there were 294 cases on the appellate docket, of which 56 were argued, leaving only 100 argued cases off the cert docket. In 1987, there were 248 cases on the appellate docket, of which 32 were argued.
Roger Friedman
Comment by r.friedman — December 1, 2006 @ 9:15 am
How about a Second Amendment case with a “Double-Split” Circuit and my Cert. still got denied!
Reasons for Granting the Writ:
Petitioner’s is a Second Amendment case as a federal civil rights case for U.S. seamen’s rights. The case has reached the U.S. Supreme Court under Rule 11 and under Compelling Reasons under Rule 10(a) of the Rules of the Supreme Court of the United States. The “compelling reasons” to grant the Petition for Writ of Certiorari are from an unprecedented double-Circuit split decisions on the Second Amendment that the United States Court of Appeals for the Ninth Circuit in Silveira, et al v. Lockyer, No. 01-15098, (9th Cir. Dec. 5, 2002) has entered a decision on the Second Amendment that is opposite in meaning to the decision of the United States Court of Appeals for the Fifth Circuit in United States v. Emerson, No. 99-10331 (5th Cir. Oct. 16, 2001, Revised Oct. 18, 2001). The Ninth Circuit ruled that “the Second Amendment does not confer an individual right to own or possess arms.” The Fifth Circuit ruled: “We agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia.”
It is now under Rule 9(c) of the Federal Rules of Civil Procedure for Conditions Precedent in that not only did the Ninth Circuit create a Circuit Split on the Second Amendment with the Fifth Circuit but the Ninth Circuit is now a Circuit Split in and of itself. On February 18 the Ninth Circuit handed down an opinion in Nordyke v. King, 2003 WL 347009 (9th Cir. 2003).
Nordyke sharply criticized the [Silveira] decision . . . which went into great detail in an attempt to refute Emerson and the individual rights view: “We feel that the Silveira’s panel’s exposition of the connecting interpretations of the Second Amendment was both unpersuasive and, even more importantly, unnecessary . . . There was simply no need for the Silveira panel’s broad digression. . . . The Silveira panel’s decision to re-examine the scope and purpose of the Second Amendment was improper. . . We ignore the Silveira panel’s unnecessary historical disquisition as the dicta that is . . . .” In a special concurrence, Judge Gould wrote that Hickman was “wrongly decided,” that the remarks in Silveira v. Lockyer about the ‘collective rights’ theory of the Second Amendment are not persuasive,” and that the individual-rights view of Emerson should be adopted. Further, contrary to other Ninth Circuit precedent (Fresno Rifle & Pistol Club v. Van de Kamp), States cannot violate the Second Amendment, for “maintenance of an armed citizenry might be argued to be implicit in the concept of ordered liberty and protected by the Due Process Clause of the Fourteenth Amendment.”
The Ninth Circuit’s double-Circuit Split with itself and with the Fifth Circuit resulted from the Supreme Court’s 64-year aversion to Second Amendment cases and must come to an end.
It cannot be overstated that Petitioner’s case “is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court. See 28 U.S.C. § 2101(e)” of Rule 11 that burdens and compels the Supreme Court to correct its own error of silence on the Second Amendment that Justice Thomas had speculated in the Printz case. Justice Thomas stated:
Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a republic.” 3 J. Story, Commentaries §1890, p. 746 (1833).
That some future date is now!
Petitioner has not exhausted all of the available documentation asserting the fact that the Second Amendment right to keep to keep and bear arms is an individual right and that right has been unconstitutionally denied to the Petitioner not only by the U.S. Coast Guard, but also by the collective effect of State and Federal laws standing in repugnance to the United States Constitution effectively nullifying the Second Amendment for the purposes of traveling the United States while armed for the purpose of personal security.
In reiterating Joseph Story’s commentary on the common defense clause of the Preamble to the Constitution, “No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?
Petitioner disagrees with State Oil Co. v. Khan 522 U.S. 3, 118 S.Ct. 275, 139 L. Ed. 2d 199, where in that case it was said that, “The doctrine of stare decisis reflects a policy judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right.” On the contrary, Petitioner asserts that it is more important that the applicable rule of law be settled right than that it be just simply and expediently settled lest we introduce tyranny as a component to the rule of law.
-Don Hamrick
Comment by Don — December 1, 2006 @ 9:40 am
Oops! My Second Amendment case at the U.S. Supreme Court was Hamrick v. President Bush, et al, Case No. 03-145.
Questions Presented For Review
A. The Scope of the Second Amendment as an Individual Right
Whether the scope of the Second Amendment as an individual right (as determined by the U.S. Department of Justice to be an individual right in their Memorandum Opinion for the Attorney General, titled, Whether the Second Amendment Secures an Individual Right, dated August 24, 2004) extends that individual right to be openly armed (holstered sidearm) in intrastate and interstate travel, whether licensed or not.
B. Star Decisis Based on United States v. Miller 307 U.S. 174 (1939) is now Destroyed.
Whether case law based on Miller and all laws based upon the premise that the Second Amendment was a right of the States to arm their militia or whether Congress had the delegated authority to pass gun control laws affecting and infringing upon the Second Amendment as an individual right through the Commerce Clause are now rendered null and void using Marbury v. Madison standard of judicial review to strike whole sections of law under the Doctrine of Unconstitutional Conditions.
Whether the actions of the government in Petitioner’s case constitutes racketeering an unlawful and unconstitutional protection scheme over the Second Amendment.
A. The U.S. Merchant Seaman & the Second Amendment
Whether the U.S. Coast Guard is required by law, by the Second Amendment to the U.S. Constitution, and by official policy of the President on the Second Amendment to endorse a Merchant Mariner’s Document with “National Open Carry Handgun,” whether or not a U.S. Able Seaman presents a certificate of course completion for a firearms recertification course for the 9mm handgun, the 12-ga. Shotgun and the M14 rifle when that training is required of an Able Seaman aboard a U.S. merchant vessel in accordance with 46 U.S.C. § 7306(a)(3).
Whether the act of National Open Carry Handgun in interstate and intrastate travel in addition to Petitioner’s application to the Coast Guard for the National Open Carry Handgun endorsement on his Merchant Mariner’s Document is “A right vested in a citizen means that he has the power to do certain actions, or to possess certain things, according to the law of the land.” Calder v. Bull, 3 Dall 386, 1 L.Ed. 648.
Whether the right to openly keep and bear arms for the purpose of personal security and armed self-defense in interstate and intrastate travel to and from U.S. merchant vessels in the United States is “Among the historic liberties protected by the due process clauses of the Fifth and Fourteenth Amendments is the right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.” Ingraham v. Wright, 430 US 651, 97 S.Ct. 1401, 51 L.Ed.2d. 711.
Whether the United States is obligated to establish an armed U.S. Merchant Marine Auxiliary as a means toward restoring the balance of powers between the People, the States, and the Federal government under the Tenth Amendment in accordance with 3 U.S.C. § 301; 2 U.S.C. § 275, 2 U.S.C. § 281a, 2 U.S.C. § 281b, 2 U.S.C. § 285b; 14 U.S.C. § 2, 93(a); 32 U.S.C. § 109; 46 U.S.C. § 1295 et seq; 49 U.S.C. § 301(1), 49 U.S.C. § 351; under the authority of the militia clause of the Second Amendment to the U.S. Constitution, to serve as:
(1) both an organized and unorganized naval militia under 10 U.S.C. § 311(b)(1) and 10 U.S.C. § 311(b)(2) respectively,
(2) a State Defense Force under 32 U.S.C. § 109 et seq,
(3) an organization to assist when called upon by civilian law enforcement under the Posse Comitatus Act in accordance with 18 U.S.C. § 1385 and 42 U.S.C. § 1989.
B. International Treaties & Conventions
Whether treaties with or conventions of the U.N. Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects and the Programme of Action resulting thereof in conjunction with the U.N. Department of Disarmament Affairs’ Disarmament Agenda for the 21st Century (DDA Occasional Papers No. 6, October 2002) and in conjunction with the U.N.’s International Maritime Organization’s Maritime Safety Committee’s Piracy and Armed Robbery Against Ships: Guidance to Shipowners and Ship Operators on Preventing and Suppressing Acts of Piracy and Armed Robbery Against Ships (MSC/Circ.623/Rev.3 dated May 29, 2002)’s anti-gun recommendations in paragraphs 45 and 46 can rule supreme over, even though repugnant to, the United States Constitution and its Second Amendment threatening to deny U.S. merchant seamen their Second Amendment right keep and bear arms in the United States.
C. The Doctrine of Unconstitutional Conditions
Whether the Doctrine of Unconstitutional Conditions ought to be applied to every law directly and indirectly affecting the Second, Ninth, Tenth, Thirteenth and Fourteenth Amendments to the U.S. Constitution for the purpose of restoring Second Amendment rights.
Whether the Department of Homeland Security was unconstitutionally established to the People’s detriment in providing for their own personal security violating the People’s undelegated powers under the Tenth Amendment to the United States Constitution.
Whether the Federal government is violating the U.S. Constitution of its guaranteed Republican form of government in failing to protect the States from Invasions and domestic violence as stipulated in Article IV, Section 4 of the United States Constitution by prohibiting the People through gun control laws from providing for their own personal security. “There is no constitutional right to be protected by the state (or Federal) against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment, or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties: it tells the state (gov’t) to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order” (Bowers v. DeVito, U.S. Court of Appeals, Seventh Circuit, 686 F.2d 616 [1982]).
D. The Checks & Balance System of Government
Whether the Preamble to the Constitution and the Preamble to the Bill of Rights have any deterrent effect to the government’s propensities to infringe and violate the People’s constitutional rights under the Bill of Rights and under the United States Constitution against a growing tyrannical government.
Whether the Thirteenth Amendment, separately or jointly with the Second, Fifth, Ninth, and Tenth and Fourteenth Amendments serve as a barrier to firearms laws enacted through the commerce clause or by any other means.
Whether there exists any remnants of a checks and balance system in our guaranteed Republican form of government in view of (1) the repeal of the Civil Defense in 1994; (2) the anti-militia laws of approximately half the states; (3) the total number of State and Federal firearms laws; (4) the weakened state of the Posse Comitatus Act; (5) the recently enacted laws (i.e., the USA Patriot Act) in the war on terrorism; (6) the creation of the Department of Homeland Security and its attack on civil liberties; (7) the sovereign and qualified immunities with the exceptions to torts and constitutional torts of the Federal Tort Claims Act under 28 U.S.C. § 2680 where the aggregate effect of all these conditions ushers in an imbalance of power excessively favoring the Federal government invoking the Doctrine of Unconstitutional Conditions.
Whether the Petitioner has a right to challenge the constitutionality of any law or statute that directly or indirectly infringes upon his right to National Open Carry Handgun under the Second, Fifth, Ninth, Tenth, Thirteenth and Fourteenth Amendments.
E. The Bill of Rights
Whether the Bill of Rights are designed where one amendment supports another or several others, or whether all of the amendments can be woven together to support all of the other amendments protecting a given right, i.e., National Open Carry Handgun.
F. Second Amendment Freedoms
Whether the constitutional right to travel the various states and the constitutional right to armed personal security are intended to be exercised together and whether State and Federal firearms laws unconstitutionally infringe upon that right, not only for the U.S. Merchant Seaman, but for all U.S. citizens.
Whether the Second Amendment is an absolute individual right. And whether the Second Amendment incorporates an absolute right to “National Open Carry Handgun” for the purpose of personal security as well as for the security of a free state.
G. Slavery and Involuntary Servitude
Whether the “aggregate effect” of anti-militia laws of approximately half the States criminalizing militia groups, militia and paramilitary activities, and the total number of State and Federal firearms laws impose upon the People of this nation conditions of slavery and involuntary servitude to the State and Federal governments as defined by the Dred Scott v. Sanford definition of a free citizen and a slave.
Whether the Thirteenth Amendment is also a right to keep and bear arms amendment to preserve one’s own life and freedom from slavery and involuntary servitude to the common criminal, foreign and domestic enemies (and terrorists), and even a growing tyrannical government.
Whether the Ninth, Tenth, and Thirteenth Amendments rights to personal security through National Open Carry Handgun provides protections against any criminal or terrorist in armed self defense, or even against rogue government agents and agencies committing violent crimes under the shield of qualified and sovereign immunities.
H. Judicial & Congressional Insurrection
Whether Petitioner’s presentment of a Presumption of an insurrection in the U.S. Congress and the Federal judicial system under Rule 301 on Evidence of Habit or Routine Practice under Rule 406, subject to Judicial Notice of Adjudicative Facts under Rule 201, of the Federal Rules of Evidence, the Militia clause to suppress insurrections of Article I, Section 8 of the U.S. Constitution compels Presidential action to suppress the insurrection in the U.S. Congress and in the Federal judicial system against the Second Amendment, the Bill of Rights, and the Thirteenth and Fourteenth Amendments.
Whether the crime of rebellion or insurrection (18 U.S.C. § 2383) exists in the District of Columbia and whether the laws to suppress insurrections, i.e., Suspension of commercial intercourse with State in insurrection (50 U.S.C. § 205); Suspension of commercial intercourse with part of State in insurrection (50 U.S.C. § 206); Federal aid for state governments (10 U.S.C. § 331); Use of militia and armed forces to enforce Federal authority (i.e., the U.S. Constitution)(10 U.S.C. § 332); Interference with State and Federal law. (10 U.S.C. § 333); Proclamation to disperse (10 U.S.C. § 334) can be applied against the District of Columbia and the federal government contained therein under the Powers Reserved to the People under the Tenth Amendment.
All questions presented herein were originally raised in the original Petition for Writ of Mandamus, et al, and motions supporting the Writ, and were reiterated and/or expanded in Appellant’s Brief and motions supporting Appellant’s Brief.
-Don Hamrick
Comment by Don — December 1, 2006 @ 10:02 am
Because of the reluctance of the Federal Courts to take my Second Amendment case seriously I have taken my case to the international level. My case can be summed up rather nicely in the following two paragraphs that I submitted as an additional insert into my Petition No. P-1142-06 that I filed with the Inter-American Commission on Human Rights:
My Quote in Email to Bernadine Smith,
Second Amendment Committee:
“The ‘right to (openly) keep and bear arms’ clause of the Second Amendment in the Bill of Rights to the United States Constitution is an ‘Absolute Right’ under the Tenth Amendment as the final arbiter on the balance of power between the People, the State Governments, and the United States Government! Therein rests the right to armed rebellion against any a government, be it local, county, State, or Federal Government that becomes oppressive and despotically tyrannical in a militaristic or fascist regime or any other type of government operating outside the limits of the United States Constitution. The “shall not be infringed” clause of the Second Amendment implies an ‘Absolute Right’ because something that is Absolute means that it cannot be infringed. This is simple deduction.
“The oft asserted judicial and executive branch claim of governmental interest for the United States in prohibitively or restrictively legislating and regulating firearms possession, carriage, and usage under the Second Amendment to its near extinction is allegedly authorized by the Commerce Clause for the purpose of crime prevention and regulating commerce is, in actuality, the ways and means to commit either genocide or politicide at some future time. Crime prevention through disarmament is a fraudulent farce against humanity. Gun control as a crime prevention measure is a proven dismal failure many times over. There is no other effective goal against the Second Amendment rights of the American people but genocide or politicide. The ‘right to life’ provisions under the International Bill of Human Rights and other international conventions and declarations imply that our Second Amendment ‘right to [openly] keep and bear arms’ is an absolute right to protect ourselves from our own local, county, State, and Federal Governments, especially under the Genocide Convention as well as from invading forces (illegal immigration), under the Law of Nations. And by extension the ultimate goal of the United Nations global gun control agenda is to empower the Member States to an increased capability and efficiency to commit genocide or politicide without fear of armed reprisals from their own people that they may someday want to kill, massacre, or slaughter. Simple logic demands this conclusion.”
Don Hamrick November 26, 2006, in an email to Bernadine Smith, Second Amendment Committee concerning the Second Amendment, genocide, and international treaties. (Revised and expanded, November 30, 2006)
Bernadine Smith’s Reply:
“Don: From my point of view, I think you are right dead center on target with your “genocide” thesis.”
-Don Hamrick
Comment by Don — December 1, 2006 @ 10:08 am
The Federal Circuit cannot obtain circuit splits, but has cemented its divisions on very important issues of patent law. The Supreme Court is taking cases from the Federal Circuit where the Federal Circuit has created a circuit split on non-patent law issues. The Federal Circuit always gets reversed on these. A current example is the Medimmune v. Genentech case that has misconstrued standing for the Declaratory Judgment Act.
The patent law splits do not get resolved. For example, the present KSR v Teleflex case is not the result of a split circuit. However, there are huge splits within the circuit that are not being taken en banc for exactly the reason that the splits are hard and very even. Thus, the application of the written description requirement to biotechnology inventions is not resolved, nor the relationship of the Federal Circuit and the District Courts in implementing the Supreme Court’s Markman v. Westview Products decision.
Patent law won’t fill the short docket — the truth is that there fewer than 5 issues that really could benefit from Supreme Court attention. But if the Court is looking to fill its docket, it could accept the cert petition that should arise from the denial of rehearing en banc in Amgen v. Hoechst Marion Roussel. http://www.fedcir.gov/opinions/05-1157o.pdf
Comment by Erik B Flom — December 1, 2006 @ 10:19 am
Isn’t so much of this question subjective, only it is the subjective judgment of the current nine that really matters. I think there are plenty of interesting, important cases the Court could be deciding, but they don’t necessarily involve circuit splits. So if the Court’s emphasis is on the circuit split aspect of Rule 10, my view and those of others who think other areas of the law need greater oversight may simply be totally inconsistent with the Court’s view of how it wants to spend its time.
By way of example, I think the Court could easily step into the sexual privacy arena to deal with a variety of “sex toy” statutes around the country. Regardless of whether I would like the outcome, there seems to be some chaos in the law, but perhaps not an overt circuit split. But it seems to me they simply do not want to deal with this area.
I think there are numerous First Amendment issues in the media law area and on other speech topics (e.g., 05-1505 Allred v. Superior Court, filed by Erwin Chemerinsky, cert. denied Oct. 2, 2006, on free speech rights of a witness in a criminal case) where clarification is needed, but again not because of overt circuit splits. The Court seems to have little interest in tackling these.
Perhaps, Marty’s very helpful question should be narrowed to: are there particular circuit conflicts or fields of circuit conflicts in which the Court could be doing more?
Comment by Steve Wermiel — December 1, 2006 @ 11:00 am
I think that there’s somewhat of an hypocrisy to insist that the appellate courts be the ones to correct mistakes and then rebuke appellate courts for doing just that, and insisting that only SCOTUS be the ones to explicitly overrule a precedent that has been undermined or whose relevance has changed given changed circumstances. (See e.g. Justice Scalia’s dissent in the juvenile execution case). If appelate courts follow SCOTUS’s dictate, and decline to “overrule” a precedent even when the law really requires it to be done, SCOTUS should automatically take the Cert petition. To do otherwise would mean not giving the losing party any chance to prevail as he or she is supposed to do so.
Comment by Jacob Berlove — December 1, 2006 @ 12:33 pm
There is a deep circuit split regarding the effect of disclosures to government agencies on one’s ability to asser the attorney-client privilege. The Court recently denied cert in Qwest, which dealed with that issue. Yet, it seems like they like to grant cert in “interesting” cases rather than issues that effect the entire business community.
We should have one Supreme Court devoted to civil rights cases, and another dealing with issues of practical business significance (I say that only half-jokingly).
Comment by Andy Grewal — December 1, 2006 @ 3:40 pm
I would share the concerns about the need for more error correction. It would be nice — on the flip side of Kent’s earlier posts — to see more criminal cases, esp. AEDPA & state postconviction cases out of the courts (and states) that make up the Fourth, Fifth & Eleventh Circuit. Long story short, for too long the Court has let slide any case in which trial counsel and the lower courts appeared to show a pulse & whose breath could fog a mirror.
Comment by Karl Keys — December 1, 2006 @ 7:59 pm
STATE CASES
It would be nice to see greater U.S. Supreme Court attention to federal questions in state courts. Unlike the federal circuit courts of appeals, the make up of state supreme courts is hardly homogeneous and federal questions, particularly those relating to constitutionality and pre-emption, do arise on a regular basis in state courts. There are, I would suspect, more state supreme court splits than there are circuit splits.
For example, while the U.S. Supreme Court has long carefully considered death penalty cases, it seems to have considerably less interest in cases often presenting similar federal issues but do not involve death sentences, even though they have greater public impact.
This could be a misperception, but the cert pool also seems to have shown a preference for resolving criminal cases at the last possible moment (i.e. on a final appeal to the U.S. Supreme Court on a federal habeas petition) rather than taking up issues on direct appeal from a final state decision in criminal cases. While this may have roots in a respect for federalism (as some portion of cases that arise on direct appeal will resolve themselves before a certiorari petition from a federal habeas corpus appeal), by greatly postponing the first federal intervention in the case, it also leads to a huge bureacratic exercise. In a climate where the high court can’t handle any more cases, this may be excusable. But, when there is some slack in the docket, intervening early in a case could have a positive impact on the system.
On a related note, one also wonders if a significant share of the “incredible shrinking docket” as it relates to state courts is that state supreme courts may have caught on to the concept of providing both state constitutional and federal constitutional grounds for their decisions, deliberately insulating those decisions from U.S. Supreme Court review. If liberal state courts use this method to insulate their liberal decisions from review, and the moderately conservative U.S. Supreme Court agrees with conservative state courts, this could explain a dearth of state court cases.
BANKRUPTCY
While Congress has not enacted a huge number of new laws, some areas have been dramatically transformed. The recent bankruptcy code overhaul is probably the most notable. While individually, few bankruptcy cases have much money at stake, bankruptcy petitions are the single most common type of case filed in federal court, and the new code has presented all sorts of new questions of statutory interpretion.
Yet, the number of cases that are litigated to the appellate court level often enough to create a circuit split is few, because the money is rarely there to bring appeals. A great many significant bankruptcy case issues have no appellate authority at all in many circuits, but there are signficant conflicts among judicial districts across the nation. Providing clarity, even when there isn’t a formal circuit split in this area, would be very beneficial for this high case volume, low case value field.
Comment by Andrew Oh-Willeke — December 7, 2006 @ 3:56 pm