The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today the Supreme Court decided New York State Rifle & Pistol Assn., Inc. v. City of New York. The Court, per curiam, found the controversy was moot. Justice Kavanaugh agreed, but wrote separately about the Supreme Court's current Second Amendment jurisprudence:
I also agree with Justice ALITO's general analysis of Heller and McDonald. District of Columbia v. Heller (2008); McDonald v. Chicago (2010); Heller v. District of Columbia (C.A.D.C. 2011) (KAVANAUGH, J., dissenting). And I share Justice ALITO's concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.
I agree heartily with Kavanaugh's concurrence. And I am fan of his dissenting opinion in Heller II. But is it common for a Justice to cite his own circuit court decision by name?
Last week, Justice Kavanaugh cited another one of his circuit decisions in Ramos v. Louisiana. See FN6 of his concurrence:
That Marks rule is ordinarily commonsensical to apply and usually means that courts in essence heed the opinion that occupies the middle-ground position between (i) the broadest opinion among the Justices in the majority and (ii) the dissenting opinion. See United States v. Duvall (CADC 2013) (Kavanaugh, J., concurring in denial of rehearing en banc)
Is this practice common? I checked the other current Justices who were elevated from the Circuit Court: Gorsuch, Sotomayor, Alito, Roberts, Breyer, Ginsburg, and Thomas. I searched the Supreme Court databases with variants of this query: adv: "CADC" /s "Ginsburg, J." (The Supreme Court sometimes uses the notation C.A.D.C. and sometimes uses CADC without the periods--the usage is inconsistent. Westlaw captures both usages with the search I provided.)
Only one other Justice cited her own Circuit Court decisions by name: Justice Ginsburg. She did so once in her concurring opinion Carlisle v. U.S. (1996):
It is anomalous to classify time prescriptions, even rigid ones, under the heading "subject matter jurisdiction." That most basic requirement relates to the subject matter of the case or controversy or the status of the parties to it…. Center for Nuclear Responsibility, Inc. v. United States Nuclear Regulatory Comm'n, 781 F. 2d 935, 945, n. 4 (CADC 1986) (Ginsburg, J., dissenting) (questioning "profligate use" of the word "jurisdiction," in diverse contexts, "to mean many things—from the absence of a constitutional grant of judicial power to a statutory limit on time to appeal").
I also checked Justice Scalia's decision. He never cited any of his CADC opinions. I welcome corrections if I missed anything.
Often, a Justice will cite a circuit court opinion by another Justice. This citation can be used in a positive or negative fashion. First, a citation signals praise of the Circuit Judge's ruling. For example, In Hernandez v. Mesa, Justice Alito favorably cited a Kavanaugh concurrence:
Under the Torture Victim Protection Act, a damages action may be brought by or on behalf of a victim of torture or an extrajudicial killing carried out by a person who acted under the authority of a foreign state. Consequently, this provision, which is often employed to seek redress for acts committed abroad, cannot be used to sue a United States officer. See Meshal v. Higgenbotham (C.A.D.C. 2015) (KAVANAUGH, J., concurring).
Here, Alito gave the seal of approval to his colleagues work on the lower courts.
Second, a citation can signal that a Justice is being inconsistent. Justice Alito took this latter approach in NYS Rifle & Pistol. In long string cite, he stresses that then-Judge Sotomayor previously "recognized that that a claim for nominal damages precludes mootness."
And it is widely recognized that a claim for nominal damages precludes mootness…. Amato v. Saratoga Springs, 170 F.3d 311, 317 (C.A.2 1999) (Sand, J., joined by SOTOMAYOR, J.);
I found several other examples in my searches of the negative cite. I find this usage to be passive aggressive. Circuit judges sit in very different positions than Supreme Court Justices. They are bound by different sets of precedent and rules, and need not take the same position once elevated. And of course, different cases present different facts. Indeed, Alito cited an opinion Sotomayor joined, but did not write! This barb is a stretch.
Update: Justice Kavanaugh also cited his own law review article in his Shular v. U.S. (2020) concurrence:
The Court has stated that the "simple existence of some statutory ambiguity" is "not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree." Id., at 138, 118 S.Ct. 1911. To be sure, as Justice Scalia rightly noted, the term "'grievous ambiguity'" provides "'little more than atmospherics, since it leaves open the crucial question—almost invariably present—of how much ambiguousness constitutes an ambiguity.' " Reading Law, at 299 (quoting United States v. Hansen, 772 F.2d 940, 948 (C.A.D.C. 1985) (Scalia, J., for the court)); see also Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016). That said, atmospherics can matter. Although the Court has not always been perfectly consistent in its formulations, the Court has repeatedly emphasized that a court must find not just ambiguity but "grievous ambiguity" before resorting to the rule of lenity.
For what it's worth, I counted eleven citations to Reading Law between 2012 (publication date) and 2017 (Justice Scalia's passing). None of the citations were in opinions authored by Justice Scalia. The closest example was Justice Kagan's dissent in Yates, which Justices Scalia, Kennedy, and Thomas joined.
- Justice Sotomayor cited Reading Law five times: Scialabba v. Cuellar de Osorio (dissenting), T-Mobile South, LLC v. City of Roswell, Ga., Department of Homeland Sec. v. MacLean (dissenting), Lockhart v. U.S., Lightfoot v. Cendant Mortg. Corp.
- Justice Kennedy cited Reading Law twice: Maracich v. Spears, Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.
- Chief Justice Roberts, once: Heien v. North Carolina
- Justice Thomas, once: Luis v. U.S. (concurring)
- And Justice Alito, once: Johnson v. U.S. (dissenting)
Update #2: Justice Stevens cited his decisions from the Seventh Circuit, very often. I counted fourteen citations between 1980 and 1995. (There were none after 1995).
Consider this self-referential string cite from Shaw v. Hunt (1996):
As I have explained on prior occasions, I am convinced that the Court's aggressive supervision of state action designed to accommodate the political concerns of historically disadvantaged minority groups is seriously misguided. A majority's attempt to enable the minority to participate more effectively in the process of democratic government should not be viewed with the same hostility that is appropriate for oppressive and exclusionary abuses of political power. See, e.g., Adarand Constructors, Inc. v. Peña (1995) (STEVENS, J., dissenting); Miller v. Johnson (1995) (STEVENS, J., dissenting); Shaw v. Reno (1993) (Shaw I) (STEVENS, J., dissenting); Wygant v. Jackson Bd. of Ed. (1986) (STEVENS, J., dissenting); Cousins v. City Council (C.A.7 1972) (Stevens, J., dissenting).
He would cited Cousins in five other case: Miller v. Johnson (1995), Shaw v. Reno (1993), City of Richmond v. J.A. Croson Co. (1989), Davis v. Bandemer (1986), Rogers v. Lodge (1982).
The other self-cites were: Jacobs v. Scott (1995), Bethel School Dist. No. 403 v. Fraser (1986), Landreth Timber Co. v. Landreth (1985), N.L.R.B. v. Action Automotive, Inc. (1985), U.S. v. Leon (1971), Autry v. Estelle (1983), Mohasco Corp. v. Silver (1980), U.S. v. Bailey (1980). I excluded from my count a number of dissents by Marshall and Brennan, that Stevens joined; I am fairly confident JPS asked the drafter to cite him.
Justice Steven was only on the Seventh Circuit for about five years. He must have thought very highly of his brief tenure. I hope this self-aggrandizing record stands.
Justice Kennedy had zero self-citations from his Ninth Circuit tenure. And Justice Souter (no surprise) had zero self-citations. Indeed, no one cited him. His tenure on the court of appeals last about five months.
Update #3: Reader Robert D. flags a cite I missed. Justice Ginsburg cited her own dissent in United States v. Balsys (1998). She used her first and middle initial, which evaded my search. (She had to distinguish herself from Judge Douglas Ginsburg). I think the initials altered the search query.
Cf. DKT Memorial Fund Ltd. v. Agency for International Development, 887 F.2d 275, 307–308 (C.A.D.C.1989) (R.B. Ginsburg, J., concurring in part and dissenting in part) ("just as our flag carries its message … both at home and abroad, so does our Constitution and the values it expresses") (citation and internal quotation marks omitted).
And Justice Kennedy cited one of his own opinions from the 9th Circuit in Glob.-Tech Appliances, Inc. v. SEB S.A. (2011). I can't figure out why this hit did not pop up in my search.
Yet the Court does more. Having interpreted the statute to require a showing of knowledge, the Court holds that willful blindness will suffice. This is a mistaken step. Willful blindness is not knowledge; and judges should not broaden a legislative proscription by analogy. See United States v. Jewell, 532 F.2d 697, 706 (C.A.9 1976) (Kennedy, J., dissenting) ("When a statute specifically requires knowledge as an element of a crime, however, the substitution of some other state of mind cannot be justified even if the court deems that both are equally blameworthy")