SCOTUS for law students: Rearguments
Few procedures at the Supreme Court are more mysterious than the decision to reargue a case. Rearguments are rare among the approximately seventy cases that are argued each Term. Even rarer is any discussion or explanation of the process by the Court or its members, present or past.
Political scientists have attempted to explain why the Court reargues cases, but – unlike many of the Court’s procedures – there is no published rule governing when reargument occurs or what may trigger the process.
Understanding the process is important because rearguments often involve important issues. Brown v. Board of Education, for example, was argued in 1952 and reargued in 1953. Roe v. Wade was first argued in 1971 and then again in 1972. More recently, the important campaign finance case Citizens United v. Federal Election Commission was argued twice in 2009 before the Court finally issued its decision in 2010.
From studying the pattern of the Roberts Court over nine years and from examining an earlier era through the papers of the late Justice William J. Brennan (1956-1990), it appears that some aspects of the practice of reargument have changed, while some have remained the same. Most notably, the Court in an earlier era seemed to order reargument from time to time when the Justices came to the end of the Court Term in late June or early July and remained divided and unable to resolve their differences. That type of reargument does not appear to have occurred since Chief Justice Roberts took the Court’s helm in September 2005.
The Roberts Court, on the other hand, has been more willing on rare occasions to order reargument to reshape the focus of a case by asking the parties to address a new issue.
Let us examine examples of these different types of rearguments. Sometimes the Roberts Court makes it clear that new arguments in a case are intended to answer a question that was not really asked the first time. The most recent reargument, Kiobel v. Royal Dutch Petroleum Co., is an example. The focus of the first argument on February 28, 2012, was whether corporations could be sued for human rights violations under the Alien Tort Statute (ATS), a law passed in 1789. Six days later, the Justices ordered that the case be argued again, this time instructing the lawyers to discuss an issue that was not at the center of the first argument – whether the Alien Tort Statute applies at all to alleged violations of international law that occur in other countries.
What happened in six days? The Justices met after argument in their private, closed-door conference to consider the case. Although the proceedings were secret, it seems clear that a majority of Justices felt they needed to address the new question they posed to the lawyers. The case was reargued on October 1, 2012, in the Court’s new Term. Six and a half months later, the Justices ruled unanimously that a a group of Nigerians living in the U.S. could not bring a lawsuit in U.S. courts against foreign companies for alleged human rights violations that took place abroad. The Court was divided five to four over how broad a rule to adopt prohibiting lawsuits under the ATS for conduct in other countries.
This story is one of comparative transparency to some: the Justices had apparent concerns during oral argument, presumably aired them with each other at their conference, asked the lawyers to address those concerns, and decided the case on that basis. Critics might say the Justices were manipulating the case to get to a specific result – limiting the extraterritorial reach of the Alien Tort Statute.
Citizens United presented a similar scenario for the Roberts Court, although one that was significantly more controversial. As originally presented, Citizens United was a seemingly insignificant campaign finance case. But after the first argument, the Justices ordered the parties to have a curtain call in which they would argue whether two major campaign finance precedents should be overruled. To critics, this was a question that was not asked by the parties and that was not necessary for decision of the case. Justice John Paul Stevens said as much in a strident dissent. But the majority of the Court apparently believed there was no narrow way to decide the case. The exchange between Stevens and Chief Justice Roberts over the Court’s expansion of the issue in the reargument was well captured by Adam Liptak in a New York Times analysis at the time. In the end, the Court ruled five to four that corporations could spend their own funds to support candidates in political campaigns.
In an earlier era, rearguments did not always come with the same degree of transparency, as becomes apparent when looking back at available documentation. As Lee Levine and I documented in our book, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v, Sullivan, sometimes the Justices simply could not decide a case, and the outcome flipped within the Court. That was the case with Dun & Bradstreet v. Greenmoss Builders. After the case was argued in March 1984, the Court tried but was deeply divided over how to resolve the defamation issues in the case. Before the October 1984 reargument, the Justices issued new questions for the parties to address, but a close look at the record suggests that those questions were in some measure a way of giving the Court cover while the Justices continued to struggle back and forth over how to decide the case. In the end, in a five-to-four ruling, the Justices narrowed the application of the First Amendment in libel suits involving private speech rather than speech about matters of public concern.
On occasion, the Court has ordered reargument to allow a new Justice to break a deadlock in an eight-member Court. That appears to be what happened in K-Mart Corp. v. Cartier Inc., argued in October 1987, argued again in April 1988, and decided a month later. In between the two arguments, Justice Anthony Kennedy filled the seat left vacant by the retirement of Justice Lewis Powell and defeat of the nomination of Judge Robert Bork. The decision, written by Kennedy, upheld some portions of a federal regulation that allowed the importation of foreign-manufactured goods bearing a U.S. trademark, known as gray-market goods. According to Justice Brennan’s papers, the Court had resolved a jurisdictional question and an issue of the merits by different votes and was ready to announce the decision when Justice Sandra Day O’Connor changed her position and created a four-to-four deadlock on the merits. The Court issued a decision resolving the issue of jurisdiction (on which the Justices were not evenly divided) and ordering reargument on the merits. As expected, Justice Kennedy broke the tie.
According to Justice Brennan’s papers, Justice Kennedy also broke an internal tie in Liljeberg v. Health Services Acquisition Corp., argued in December 1987, reargued in April 1988, and decided in June 1988. The issue was a matter of interpretation of the federal law governing judicial disqualification.
A similar practice apparently occurred when Justice Alito replaced Justice O’Connor in January 2006. Two cases, Hudson v. Michigan and Kansas v. Marsh, were reargued after Alito arrived and when his vote was required to resolve a four-to-four deadlock. One can deduce this from the circumstances. Cases that were argued around the same time in early January 2006 when O’Connor was still on the bench subsequently fell into two groups. Those argued cases that garnered at least five votes for the outcome without counting Justice O’Connor did not need to be reargued, because the departure of O’Connor and arrival of Alito would not change anything. But Hudson v. Michigan was argued on January 9, 2006 with Justice O’Connor participating. Justice Alito took her place a few weeks later. The case was reargued on May 18, 2006 and decided just a little less than a month later, by a five-to-four vote. Justice Alito joined the majority, which ruled that a violation of the Fourth Amendment knock-and-announce requirement for police does not require that evidence obtained in the process be excluded from a criminal case.
At about the same time, the Court heard arguments in Kansas v. Marsh in December 2005 and then heard the case again in April 2006 after Justice Alito had joined the Court. Alito was in the five-to-four majority when the case was decided on June 26, 2006, in an opinion that upheld the Kansas death penalty statute.
In the end, it is fair to conclude that the Court has used the process of rearguments in different ways over the years. If there is one common factor among all versions of this process, it is that the Court does little to explain when and why it will order cases reargued.