The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Supreme Court

Do Circuit Courts Have "Supervisory Power" Over District Courts?

An interesting concurrence to one of today's Supreme Court decisions.


The Supreme Court issued two opinions today (which is odd for a Friday). In one the Court unanimously held that the Foreign Intelligence Services Act does not displace the state secrets privilege. In the other it reinstated the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev, by a vote of 6-3.

The Court's lineup in the Tsarnaev case was not unusual—the conservatives were in the majority and the liberals were in dissent. What was interesting, however, was the concurrence by Justice Barrett, joined by Justice Gorsuch, suggesting a broader potential problem with the circuit court's decision to invalidate Tsarnaev's capital sentence: Circuit courts lack supervisory power over district courts to dictate the latter's procedures.

From Justice Barrett's concurrence:

In this case, the First Circuit asserted "supervisory power" to impose a procedural rule on the District Court. Because that rule (which required a district court to ask media-content questions on request in high-profile prosecutions) conflicts with our cases (which hold that a district court has broad discretion to manage jury selection), I agree with the Court that the First Circuit erred.

I write separately to note my skepticism that the courts of appeals possess such supervisory power in the first place. Article III's grant of "[t]he judicial Power" imbues each federal court with the inherent authority to regulate its own proceedings. . . . This authority permits federal courts to handle a range of matters, big and small, that fall in the gaps of governing statutes and formally adopted procedural rules. . . .But here, the First Circuit did not adopt a rule regulating its own proceedings—it adopted a blanket rule that all district courts in its jurisdiction must follow on pain of reversal.

In fairness to the First Circuit, we have suggested that the courts of appeals possess authority to dictate procedural rules for district courts. . . . Understandably, then, the First Circuit followed our lead. But before we go further down this road, we should reexamine the map. Not only have we failed to identify a source for this supposed authority, it is unclear that any exists.

To be sure, this Court has squarely asserted supervisory power to regulate procedure in lower federal courts. . . . While we have not justified this power either, it has an at least arguable basis: the Constitution's establishment of this Court as "supreme," as distinct from the "inferior Courts" that Congress has discretion to create. Art. III, §1. Much like the grant of "[t]he judicial Power" carries with it inherent authority over local procedure, this Court's designation as "supreme" might carry with it some inherent authority to prescribe procedural rules for inferior federal courts. . . .  In the end, this argument might be unsupported by the Constitution's structure and history. Still, the text of Article III makes it plausible.

Yet whatever the status of this Court's supervisory authority, it is difficult, if not impossible, to find any comparable constitutional hook for such power in the courts of appeals. Nor does any statute grant them this general authority. And while it is tempting to roll supervisory authority into the power of appellate review, the two are analytically distinct. A court engaged in appellate review in this context determines whether a lower court exceeded its inherent authority to make a procedural choice. A court asserting supervisory authority imposes its own procedural choice on the lower court. In other words, supervisory authority is not necessarily a lesser included power of appellate review.

This case does not require us to resolve whether the courts of appeals have supervisory authority over district courts. Either way, the First Circuit erred. At some point in the future, however, it would be worth revisiting our dicta.

Federal Courts professors take note!

One other little tidbit: Justices Kagan and Sotomayor joined Justice Breyer's dissent with the exception of the following paragraph:

I have written elsewhere about the problems inherent in a system that allows for the imposition of the death penalty. See, e.g., id., at 909–938. This case provides just one more example of some of those problems

There will be more opinions Monday.