The briefs in two pending petitions for certiorari raise an interesting point of Supreme Court procedure. The Solicitor General’s petition for certiorari in the tobacco RICO case (No. 05-92, United States v. Philip Morris USA) seeks review of the D.C. Circuit’s limited reading of the government’s ability to secure disgorgement of illegally obtained profits under RICO. [Update: the companies’ response is here.] The Solicitor General’s opposition to certiorari in the Hamdan military commissions case argues that the Court should not review the D.C. Circuit’s expansive reading of the President’s power to establish commissions.

The substantive legal questions are unrelated, but the two cases raise a common and recurring issue of Supreme Court practice: when is it appropriate to review an interlocutory decision? Neither of the D.C. Circuit decisions represents the final word in the cases; both call for further proceedings.

The Solicitor General’s position in the two cases is notably inconsistent – in Philip Morris, the government argues for interlocutory review; in Hamdan, the government argues that interlocutory review is rarely appropriate. (This is not a particular criticism of the S.G., as the government inevitably finds itself having to argue at cross-purposes in different cases at the Court on various questions.) As an intuitive matter, the government’s position has matters precisely backwards: in Philip Morris, interlocutory review seems premature because the tobacco companies haven’t been found liable (such that the question of remedies might never arise) and no other cases are affected in the interim; in Hamdan, the question goes to the very procedures the commissions will apply and the case controls the commissions considering charges against other detainees.

The truth of the matter in any event is that the importance of the interlocutory status of a case is often grossly overstated, including in the Stern & Gressman Supreme Court Practice treatise. The fact that further proceedings remain to be conducted on remand is a factor the Court considers, but its significance varies greatly depending on whether other factors counsel in favor of review. No statute limits interlocutory review in cases in the federal courts, in contrast to state cases, with respect to which only “final” decisions may be reviewed (a requirement that the Court has read expansively to permit review when the federal issue is finally resolved). And the Justices seem not to give exceptional weight to the interlocutory status of a federal case.

The Court regularly grants cert in non-final cases that raise important issues even when the proceedings on remand could illuminate the record in relevant respects and could affect the legal issue presented. Just taking a look at the last ten cases decided last Term, the Supreme Court granted cert. despite the fact that the judgment was not final in half of them: Grokster, Bell v. Thompson (a habeas procedure case), Castle Rock (the protective order case), Mayle v. Felix (another habeas procedure case), and Exxon Mobil Corp. (a supplemental jurisdiction case).

(Disclosures: I was asked by Hamdan’s counsel for my thoughts on the interlocutory question; and this post reflects my reaction. I also have clients that are watching the Philip Morris case to make investment decisions, but I have no idea whether their interests would be furthered by a particular ruling on cert.; I have just been retained to offer an opinion whether the Court will take the case and, if it does, how the Court will rule.)

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