Supreme Court

(When) Should Lower Courts Try to Predict Supreme Court Rulings?

A plea for a more refined view, inspired by yesterday's decision in Hughes.


It is largely eclipsed by some of its other rulings and non-rulings of the day, but one of the most interesting things that the Supreme Court failed to decide yesterday was how lower courts are supposed to read a 4-1-4 Supreme Court decision with no majority opinion. The case is Hughes v. United States, and Richard Re, who wrote an excellent amicus brief and underlying article, has some typically interesting thoughts over at Prawfsblawg.

Towards the end of his post, Richard brings up an interesting related issue that arose during arguments in the case, which is the extent to which lower courts ought to follow "the 'predictive model' of precedent, whereby lower courts strive to predict the decisions of their judicial superiors." As Richard notes, Chief Justice Roberts forcefully asserted this model, which "was eyebrow-raising at the time" given the Supreme Court's own statements. And I think enlightened opinion has generally suggested that there is something problematic about substituting "what the Supreme Court will do" for lower courts' duty to apply the law as it stands.

Still, it seems to me that we need to think more carefully about what the "predictive model" actually is and whether we might be able to refine it into something that makes sense. I can think of at least four different propositions that the model might entail:

  1. Lower courts should be free to engage in "anticipatory overruling" of Supreme Court decisions. The Court itself has been most forceful about rejecting this point, saying that: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." And even if that precedent rests on "increasingly wobbly, motheaten foundations … it is this Court's prerogative alone to overrule one of its precedents."
  2. Lower courts should apply Supreme Court precedent differently just because the Court's personnel has changed. For instance, the day that Justice Alito assumed Justice O'Connor's seat, one could look at a law professor's list of 5-4 decisions that seemed likely to be overturned; even if one does not accept (1) above, one could imagine lower-court judges approaching decisions in those areas (abortion, campaign finance, affirmative action, the Establishment Clause, and the Fourteenth Amendment enforcement power) with a new thumb on the scale.
  3. Lower courts should apply Supreme Court precedent differently (or not at all) in cases where no Supreme Court review is possible. This may frequently be more hypothetical than real, but is a frequent ingredient in debates about limiting federal jurisdiction. A frequent assumption of those who wanted to restrict the Supreme Court's review over certain issues or courts is that freed of Supreme Court review, the tribunal would be freed of the obligation to follow Supreme Court precedent as well. There is at least some historical support for this view.
  4. Lower courts should try to follow the general drift of an area of law, not only the specific holdings and dicta of Supreme Court opinions. For instance, in qualified immunity, or AEDPA habeas review, or arbitration, the Court takes a string of cases, generally to reverse the lower courts, and generally in the same direction. Sometimes these reversals are summary, and sometimes the Court remands other cases on the same topic for review in light of the most recent reversal. Perhaps at some point lower courts are supposed to get the message.

Referring to the "predictive model" generally suggests that these four things should all travel together. But that is not so clear to me. For instance, the Court's explicit rejection of (1) does not necessarily entail a rejection of (2)-(4). For my own part, I strongly favor (1), generally favor (3), and am more open to (4) than to (2).

Another possible refinement is to imagine a "predictive model" that might sit alongside another more fundamental theory of lower court decision. For instance, a predictivist might plausibly argue that a lower court judge really has two legal duties. First, to get the law right as a matter of first principles (meaning to rule in the way that would be correct absent any precedents that misstate the law); and second, to avoid wasting the litigants' time and money with decisions that will likely be reversed. Under this theory, prediction might be a constraint on a theory of independent judgment, rather than a source of law itself. It might also suggest that in cases where predictions are the most unclear, judges should focus on the underlying principles of law rather than trying to read tea leaves. On that view, Hughes may not have been a good case to use the predictive model, but that doesn't necessarily mean there's no good case for it.

NEXT: President Trump Apparently Unblocking Twitter Critics, Even While Appealing the Decision

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  1. More interesting is taking seriously the oath that federal judges swear to "support this Constitution." As the Court wrote in Marbury v. Madison: "Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime. It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank." I would add that it is not the precedent of the Supreme Court that is the supreme law of the land, but only the Constitution itself. And it is the Constitution that judges are required to take an oath to support, not the precedent of the Supreme Court. The decisions of the Supreme Court is binding only on the parties before it. Now of course if judges are going to actively and clearly decide a case in a way contrary to the precedent of the Supreme Court because the judge believes the precedent is wrong, the Supreme Court has the power to summarily overturn those decisions.

    1. You're citing John Marshall and Marbury v. Madison in support of your argument that the Supreme Court's reach should be limited?

      You millennials and your irony...

  2. I strongly oppose giving free rein to District Court judges in situation (1). I also wonder if the author, like Ted Cruz, formed his entire view on the American system of government prior to leaving high school.

    1. What makes you think (1) was prescriptive and not descriptive?

  3. I'm confused as to how Freeman v. United States represents a 4-1-4 split. Justic Sotomayor concurred with the majority. What was it about her reasoning that differed so substantively from that of the majority as to preclude her from being counted as voting with the majority?

    1. Because in Freeman, Justice Sotomayor said, " I agree with the plurality that petitioner William Freeman is eligible for sentence reduction under 18 U. S. C. ?3582(c)(2), but I differ as to the reason why."

  4. The various models seem to be talking about lower courts overruling SCOTUS precedent on some kind of predictive basis. But the body of the argument seems to be about cases where there isn't a clear precedent because there was some kind of split. What have these two things got to do with each other ?

  5. "3. Lower courts should apply Supreme Court precedent differently (or not at all) in cases where no Supreme Court review is possible."

    Replacing "possible" with "likely", this is exactly what the lower courts are doing with Heller and McDonald.

    1. Is it every time you disagree with lower courts you assume bad faith, or only with respect to guns?

      1. I get the impression Brett does not view legal questions in an "agree or disagree" framework, but rather uses a "correct and incorrect" framework. Whereas some may recognize that reasonable people will disagree over questions of law (and politics more broadly), others (such as Brett) see a right answer and wrong answer on these questions. The "right" answer just happens to correlate with conservative positions, meaning wrong answers = liberal. So, liberals "incorrectly" decide cases of law, which means they must either not "know" the law, or they must know it but intentionally misconstrue it (act in bad faith).

        It seems like a rather rigid and unpleasant way of going through life, but I suppose to each their own.

  6. Professor, do you think that the lower courts followed a "predictive" theory in the same sex marriage cases? I seem to remember that there was a summary affirmance on point, at least as to the constitutionality of states limiting marriages in their own states to heterosexual ones.

  7. The Supreme Court has repeatedly said lower courts should adhere to Supreme Court decisions, even if they look shaky, and leave to the Supreme Court the prerogative of cleaning up its own mess. That's all very well, but what sanction is there if a lower court oversteps and correctly predicts? None.

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