Breaking News

Argument analysis: Pragmatic common-law development of federal “inherent authority”?

In what reads like a brisk fifty-two-minute argument this morning, the Justices seemed inclined – but not certain – to accept, in Dietz v. Bouldin, some limited authority for federal judges to recall a “discharged” jury. Such a ruling, however, seems likely to be hedged with “not this case” qualifiers, in a manner akin to case-by-case development of the common law. “Only a short time later,” “no actual or even probable prejudice,” and “be more careful in criminal cases” seem likely candidates for limitation.

The facts and question here

As recounted in our preview, this case presents a simple two-day diversity trial about damages from a car crash, in a small federal courthouse in Montana. The jury returned a verdict which, after “a fairly quick second thought,” the judge realized was not valid and indicated that the jury had misunderstood the court’s (not so clear) instructions. Thus, although the jury had been “discharged” a few minutes earlier, the judge “stopped the jury from leaving the building” and reassembled them.

The judge first asked the jurors whether they had spoken with anyone about the case, and he individually questioned one juror who had actually left the courtroom hallway. After being assured that they had not, the judge instructed them correctly and directed them to deliberate further. Over Rocky Dietz’s objection to this procedure – he apparently wanted a new trial with a different jury – the judge explained that “I hate to just throw away the money and time that’s been expended in this trial.” The Ninth Circuit affirmed the resulting verdict and the district court’s procedure; by contrast, the Eighth Circuit has endorsed a more “bright line” rule against recalling a jury once it has been discharged and left the courtroom.

The Justices’ concerns

Interestingly, Chief Justice John Roberts opened the questioning (he usually leaves this to other Justices, often Justice Ruth Bader Ginsburg), and continued steadily through six questions over the first four transcript pages. Ultimately he asked, “Why doesn’t it make sense … if they’re right out in the hall … [to] bring them back in and ask … have you talked to anybody about the case?” Arguing for Dietz, Kannon Shanmugam focused on “the potential for influence” once jurors have been discharged, and he ultimately argued that “in the absence of a long history” and “some necessity,” the Court “should not be recognizing an inherent authority” when a bright-line rule would be simple to administer.

But this response did not appear to satisfy the Justices. “Why not? Why not?” asked Justice Stephen Breyer. “[W]hy don’t we say the efficiency argument is what counts?” Justices Sonia Sotomayor, Ruth Bader Ginsburg, Samuel Alito, and Anthony Kennedy all seemed to voice similar concerns. Justice Sotomayor confirmed that there was no “constitutional barrier” to granting judges some discretionary authority, and she noted that “in most fair trial analyses we look to … a likelihood of prejudice.” And Justice Alito got Shanmugam to agree that federal courts are not “bound” to a practice “simply because that was the practice in 1789.” This is not constitutional originalism (the spirit of Justice Antonin Scalia still hovering). It is simply a question of the “inherent authority” of federal judges to react to, as Justice Alito put it, “hundreds of things that are not expressly authorized by rule.”

Toward the end of Shanmugam’s argument, the Chief Justice came in again, telling him that Dietz’s “policy arguments ring a little hollow.” Shanmugam did a good job sticking to his “straightforward” rule: no recall after discharge, although courts can pause before discharging a jury, and “clerical errors” may be corrected. Shanmugam even evoked some laughter when he made a Clintonian suggestion that it depends “what the definition of a discharge is,” to which the Chief Justice said “Well, that’s pretty lawyerly.” “Thank you, Mr. Chief Justice,” Shanmugam gamely responded. “[Laughter].” But when Shanmugam sat down while reserving time for rebuttal, the Court seemed inclined to rule against him.

But not so fast . . .

However, when Neal Katyal, arguing for Hillary Bouldin in favor of discretionary inherent authority, stood up to argue, Justice Sotomayor gently let him know it would not be all smooth sailing. “Mr. Katyal, my problem is, I have problems with his rule,” but “I have problems with yours” too. “[Laughter.]” A rule extending to all cases, not just this easy one, would have to deal with certain realities. For example, as Justice Sotomayor (the former federal trial judge and state trial prosecutor) noted, “It’s not uncommon” … for families to be crying outside of courtrooms, … visibly expressing their pleasure or displeasure”; or for court personnel to say “something like ‘good job guys,’” as discharged jurors leave the courtroom. That is, external influences on jurors are likely upon discharge, not unusual.

Similarly, Justice Elena Kagan, who was silent for most of the argument, asked about the “difference between” jurors before and after they have been discharged: the latter “take off [their] juror hat psychologically … and start thinking about a case in a different way.”   As Justice Sotomayor asked, “what’s the rule that takes care of all of those things?”

Katyal basically responded that this can all be trusted to the discretion of experienced federal trial judges. But then Justice Kennedy asked, “would your rules apply equally in a criminal case?” and he noted certain constitutional double jeopardy concerns not present in civil cases. Katyal responded that the Court “shouldn’t get into it” and “should bracket those types of concerns.” But, Katyal explained, what the Court ought not do is adopt a “one-size-fits-all solution for the entire country.”

On this point the argument went briefly off track. Justice Sotomayor indicated that she was “looking for a principle that would apply … [in] State court.” But this case is limited to the non-constitutional authority of federal judges and, as Katyal subtly indicated, “nothing this Court will do will solve” any problems in the state courts. (Katyal also indicated that state courts are divided, twenty-one to eleven, in favor of the discretionary solution. It will be interesting to see whether, and how, a non-binding U.S. Supreme Court ruling here, in any direction, will affect that split.)

Arguing for the federal government as an amicus in support of Bouldin, Assistant to the Solicitor General John Bash then outlined a moderate position with some general, reasonable, limitations. Justice Sotomayor tried to get Bash to state a definite time limit beyond which jurors could not be recalled – but he politely resisted. And Bash also evoked laughter, which seemed to be the spirit of the hour, when he compared jurors after discharge to a law school graduate “getting out of the Bar exam” with information quickly “receding from your brain.”


As Katyal noted, the federal Rules Committee can address any specific questions raised by discretionary jury recalls. Perhaps for this reason, the oral argument in this relatively inconsequential case generated some good-hearted “laughter” and gave the Justices an opportunity to display the collegiality they often publicly claim but which the public seldom gets to actually observe. For example, Justice Sotomayor favorably referred to “what the Chief Justice said,” and Chief Justice Roberts happily invoked “this concern that Justice Breyer pointed out.” Meanwhile, the Justices displayed no interest at all in Katyal’s pointed suggestion, made in his brief, that the Court should dismiss the case as improvidently granted.

On the merits, we might expect a unanimous and relatively case-specific endorsement of the discretionary inherent authority position, with cautious limitations stated but not necessarily adopted, leaving for lower courts and future cases the application of the general rules. For example, to accommodate Justice Sotomayor’s recognition of “prejudice” standards in other contexts, one could imagine a limit to jury recall authority when a “reasonable probability” of prejudice is shown. And so the common law develops, slowly and case-by-case, even at the highest level of Supreme Court examination.

Recommended Citation: Rory Little, Argument analysis: Pragmatic common-law development of federal “inherent authority”?, SCOTUSblog (Apr. 26, 2016, 9:12 PM),