Legal scholarship highlight: Interaction of the Supreme Court and the courts of appeals
on Mar 14, 2012 at 2:00 pm
What happens in the federal courts of appeals after a major Supreme Court ruling comes down in the midst of much case activity on the subject of the ruling? How do the judges deal with the situation? What are the dynamics? My article, “Court of Appeals Dynamics in the Aftermath of a Supreme Court Ruling,” explores the relationship between the Supreme Court and the federal courts of appeals through the story of the aftermath of the 1973 border search case of Almeida-Sanchez v. United States and its progeny.
Almeida-Sanchez originated in the Ninth Circuit. In its aftermath, that court, facing many recently decided or pending appeals stemming from searches of varying intrusiveness at or near the border (i.e., some at fixed, permanent checkpoints, with others at temporary checkpoints or done by roving patrols), had to apply a mix of fast-developing Fourth Amendment law and resulting questions in the uncertain law of retroactivity. The dynamics became still more complex as the Supreme Court decided several more rulings on border searches (and their retroactivity) while the Ninth Circuit was attempting to sort the issues out.
Prior studies have usually looked at the impact of individual Supreme Court decisions on subsequent lower court rulings from the top down, under the implicit assumption of a relationship both direct and simple in which later lower court rulings embody the substance of the Supreme Court’s opinion. In reality, however, matters are far from that simple. Not only may a Supreme Court ruling require interpretation, but more than one such ruling may also be in play simultaneously, ascases may be moving between the courts of appeals and the Supreme Court, and lower court cases likely will be at various stages in the appellate process when the Supreme Court’s primary ruling is decided.
Studies that focus on lower court outcomes (affirm or reverse), or even on how lower courts’ opinions reflect those of the Supreme Court, systematically miss several elements, especially lower-visibility actions (or non-actions) such as the courts of appeals’ often-extensive discussions of the meaning of the Supreme Court’s decisions and the judges’ treatment of many factually similar or legally related pending cases, plus others already decided. These effects expand as the Supreme Court returns other cases to the circuit for reconsideration in light of the primary ruling (GVRs) or if it soon rules on related issues.
Not much has been known of these matters because of a lack of access to what takes place within the U.S. courts of appeals. This article provides such a look into the dynamic relationships between the two levels of courts through the papers of Judge Alfred T. Goodwin, now a senior judge on the Ninth Circuit, particularly case files containing communications among the judges. These papers are especially significant for the Almeida-Sanchez aftermath because Judge Goodwin served as the court’s en banc coordinator, responsible for monitoring and facilitating the judges’ communication and – in the then much-smaller Ninth Circuit – even participated in selecting cases for en banc treatment. (As I have explained in an earlier article, the en banc coordinator is a position present only in the Ninth Circuit.)
The article proceeds in roughly chronological fashion, with a baseline provided for the reader, and it emphasizes analysis of a number of elements in the relationship between the federal courts of appeals and the Supreme Court. What do we see in this portrayal? First is the story, interesting in its own right, of the development of the law of search and seizure and of border searches in particular, which should be relevant to contemporary concerns about “control of the border.” Next, although not cast in terms of the Supreme Court’s impact but fitting within my long-standing interest in that subject, the story suggests the great effect the Supreme Court does have on the court of appeals. Although it has been suggested that lower federal courts may thwart the Supreme Court by avoiding its rulings or at least their full implications, the evidence here is quite to the contrary, with the Ninth Circuit largely deferring to the Supreme Court and following its lead.
There was no simple individual arrow from the Supreme Court’s Almeida-Sanchez ruling to a single case in the lower courts. Instead there were multiple arrows – at first, the Supreme Court ruling plus the GVR orders that followed plus the Court’s later rulings – that struck a host of potentially affected cases; overlapping sets of cases on the status of fixed checkpoints and on Almeida-Sanchez’s retroactivity were at play. The dynamics became yet more complex as the Ninth Circuit dealt with the first stage of the aftermath of Almeida-Sanchez, particularly by deciding several cases en banc, including the one that became Bowen v. United States. Here we see both the court of appeals and the Supreme Court deciding multiple cases in parallel and intersecting ways.
On the basis of Almeida-Sanchez, the court of appeals acted directly to affirm or, more frequently, reverse convictions, returning other cases to the district court for “reconsideration in light of” the Supreme Court’s action – a disposition analogous to the Court’s GVR “in light of” an intervening decision. The court of appeals held other cases for further developments that would facilitate their resolution so that multiple panels would not each have to repeat each other’s work. As many three-judge panels dealt with similar issues, cases were selected for en banc treatment to maintain consistent results, with dynamic interaction developing within the en banc process. To provide the cleanest resolution of issues on which other cases depended, the judges determined to hear en banc the cases that were the most appropriate vehicles for deciding multiple, recurring, closely related, questions.
One aspect of the interaction between the Supreme Court and the courts of appeals that is revealed in this article is the courts of appeals’ anticipatory deference to the Supreme Court – in particular, the lower courts’ tendency to defer action when they believe that the Justices are likely to issue a ruling on follow-up questions that would affect cases pending in the courts of appeals. There is considerable evidence that court of appeals judges wait for the Supreme Court to act and that they do so independent of competing judicial ideologies (or “agendas”): both “liberal” and “conservative” judges wanted to resolve key issues – such as whether a ruling on roving patrols applies to fixed checkpoints, what constitutes a fixed checkpoint, or which rulings were retroactive – so those matters could go to the Supreme Court for final resolution.
Cases that the court of appeals hands down after a major Supreme Court ruling may well have been held pending that ruling to await developments once tendered to the Justices for possible review. The courts of appeals also exhibit deference to the Supreme Court by facilitating the movement of cases to the Court; for example, they hold prompt en banc hearings, with some occurring even before three-judge panels completed their work. As I have noted in a recent article, some judges have even argued that the lower courts should speed cases to the Supreme Court by not tying them up in the en banc process, as the justices would have the final word on issues that were quite “certworthy.” Furthermore, as a court of appeals incorporates a new Supreme Court ruling into pending cases, its judges at times withdraw submission in already-submitted cases and then either call for supplemental briefing or remand for further action.
In this study of Almeida-Sanchez’s aftermath, we have a picture that may well be most generally indicative of the inter- and intra-court dynamics that transpire in areas of law with high volumes of cases that are at various stages of the appellate process when the Supreme Court hands down a major ruling announcing new rules of law. However, we cannot be sure how typical this story is almost forty years after it took place, when this case study is about not only a leading Supreme Court ruling but also about several other decisions by the Justices and multiple en banc rulings by the courts of appeals within roughly a five-year span. Yet recurrence of this picture is likely. For example, a single Supreme Court ruling after enactment of a widely challenged statute might cause some lower courts to alter their rulings if the Justices overturn their position, as the Ninth Circuit had to do when new inter-circuit conflict developed after Congress passed the Sentencing Guidelines Act and the Supreme Court upheld it in Mistretta v. United States.
There are other legal issues likely to produce high volumes of cases subject to being affected by a Supreme Court ruling or rulings. Among them would be some aspects of substantive criminal law, as would, certainly, other aspects of criminal procedure, including effectiveness of counsel or federal habeas corpus procedure. In all those areas, potentially affected would be every one of state prisoners’ testing of their state convictions in federal court. Another such high-volume area would be immigration law, where the increase in appeals from agency rulings, most obviously in the Second and Ninth Circuits, has led to the creation of devices, such as special screening panels, to deal with that volume. Yet in many areas of the law, the Supreme Court decides one case and then does not accept another on the subject for quite some time. In such areas of the law with relatively fewer cases, such as antitrust, one can imagine a major Supreme Court ruling having effects on U.S. court of appeals decisions, but not many antitrust cases are proceeding in the lower courts at any one time in which immediate and substantial effects would be registered.
Concluding Note. The aftermath or “backwash” from the Supreme Court’s ruling in Almeida-Sanchez well illustrates the dynamic interaction between the Supreme Court and a U.S. court of appeals as well as the latter’s closely related internal dynamics as it coped with the effects of Almeida-Sanchez and its progeny. The post-Almeida-Sanchez period also provides a look at interaction among court of appeals judges as they decide whether to hear a case en banc and the reasons why cases are heard en banc, and one sees as well substantial use of “unpublished” (nonprecedential) memorandum dispositions, which the Ninth Circuit began to use regularly at that time.
The effect of the Supreme Court’s decisions on the courts of appeals through the prism of the Ninth Circuit’s dealings after Almeida-Sanchez sheds light on the varied ways in which the Court’s decisions, after being handed down, ultimately affect the lower courts and the parties before them, on what might be called the downstream effects of those rulings on a key part of the entire legal system, on how the Supreme Court’s actions ultimately play out.
Stephen L. Wasby is professor emeritus of political science, University at Albany – SUNY. He resides in Eastham, Mass., and can be reached at firstname.lastname@example.org