Quit Saying the Court Decided a Case

The Court doesn't decide cases; it only answers discrete questions, but it hasn't always been that way.

Thanks to Eugene for letting me guest post this week on my recent essay The Origins of Supreme Court Question Selection, which is just out in the Columbia Law Review.

It took me a long time to realize the Supreme Court doesn't really decide cases: it answers questions. It's not like the Court hides this. Look at its rules. Here's the relevant part from rule 14.1(a): "Only the questions set out in the petition, or fairly included therein, will be considered by the Court."

Now, as observers of the Court will recognize, this isn't strictly true. The Court will often instruct parties to brief questions that aren't in the petition (e.g. Citizens United) or eliminate some questions that are asked from consideration (Dobbs). While this kind of question targeting is admittedly odd (and with a few exceptions, largely ignored in the scholarship), it is only a more aggressive variation of the broader phenomenon: the Court only answers the questions it wants to. It doesn't seem to care about cases much at all.

The distinction between cases and questions is subtle but important. Cases are composed of questions. For a court to decide a case, it must answer some—but not necessarily all—questions in a case. Judgment in a case emerges when a sufficient set of questions has been answered. For an appellate court, things may depend on the posture of the case on appeal. If the lower court got a single question wrong, that might be enough to justify a reversal. On the other hand, the respondent is still free to defend the judgment below on alternative grounds. This means that saying that the lower court got a question wrong may or may not be sufficient to decide a case. And only very rarely could a court affirm a judgment (affirm that the record is free of material errors) by reviewing only one question and ignoring all others.

Untangling the relationship between cases and questions is a complicated business, but hopefully it's at least clear that there is a meaningful distinction between them. So, what to make of the Court's practice of answering discrete questions instead of deciding full cases? Pretty big questions emerge almost immediately: Is a mere question a "case or controversy" under Article III? How does narrowing the focus to preselected questions affect the Court's decision-making and the substantive law it generates? You could probably think of a few others. But what I want to do is step away from the larger constitutional or institutional design questions and just consider how this state of affairs came to be.

It seems strange to us to think that the Court once had almost no control over its docket. Justices had almost no say in which cases they would have to decide, and they had to decide the whole case. It was a different world. Justices didn't have clerks, Westlaw, or even a courthouse. They decided hundreds of cases each term while still "riding circuit" in a world without planes, trains, or automobiles. Today, the justices are aided by clerks drawn from the smartest graduates of the best law schools, assisted by a dedicated team of librarians, and work in their own marble palace. Instead of deciding hundreds of cases, the Court answers a few dozen questions.

This week, I want to tell you part of the story of how we got from there to here. I want to explain how the Court took the power to cherry pick its questions. I say "took" this power because it was not—despite the law office history to the contrary—given to the Court by Congress. Take a look at 28 U.S.C. § 1254:

Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree;

(2) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.

The statute makes the now familiar distinction between questions and cases. The Court can review specific questions when they are certified by a circuit court. It reviews cases through certiorari or after a circuit court certifies a question and the Supreme Court orders the lower court to send up the "entire record . . . for decision of the entire matter in controversy." This is worth restating: The statute explicitly links certiorari to cases and simultaneously distinguishes cases from questions, which the Court may consider in isolation only through certification.

This is the statute Congress passed, but it does not reflect the Court's practice. So where did the Court find the power to cherry pick its own questions? Two possibilities seem obvious: First, perhaps question selection is part of the general appellate power or the writ of certiorari. Second, maybe that's what Congress intended when it created the statutory writ of certiorari. My next two posts will consider both of those possibilities. Following that, I'll identify the moment the Court took the power for itself and then bring the story up to the present day. Collectively, these posts will tell the tale of origins of Supreme Court question selection.

Comments

[Stephen Lathrop]

Professor Johnson, perhaps in the course of considering the history, you have also had occasion to reflect on issues related to congressional power for court reform short of court packing. If so, a final post detailing any such reflections would be welcome.

[DaivdBehar]

I do not understand the difference between a case and a question. I thought courts do not give advice, they rule on a case.

[Goat]

In this context, a case is a legal dispute between two adversarial parties. A question is a discrete legal issue presented by the dispute. One case may implicate several questions.

To your point, and I think the point of the original post, quite often SCOTUS seems to answer questions that aren’t actually being raised by the case before them.

[tkamenick]

“Quit Saying the Court Decided a Case”

No.

[Patrick Henry, the 2nd]

This.

This article is typical lawyer speak.

[Cal Cetín]

Why should I be interested in what some Jacobean playwright says about the Supreme Court?

https://en.wikipedia.org/wiki/Ben_Jonson

[Ridgeway]

That dude’s missing an “h.” Unless it is a clever disguise.

This is the guy from Last Picture Show.

[Cal Cetín]

Or maybe it’s the guy who used to make those T-shirts.

[Martinned]

For (possible) amusement:

A major part of the docket of the EU Court of Justice does explicitly consist of answering questions:

Article 267

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. (…)

However, even though the questions in question are formulated by judges in the Member States and not by lawyers with an axe to grind, the ECJ still has a habit of “reformulating” them to suit its needs.

For example, in March the ECJ gave judgment in two massive cases on double jeopardy. One of them was an action for annullment, but the other one was a prejudicial question case from Austria:

25 In those circumstances the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer to following questions to the Court of Justice for a preliminary ruling:

‘(1) Is the third criterion established in the Court of Justice’s competition case-law on the applicability of the non bis in idem principle, namely that conduct must concern the same protected legal interest, applicable even where the competition authorities of two Member States are called upon to apply the same provisions of EU law (here: Article 101 TFEU), in addition to provisions of national law, in respect of the same facts and in relation to the same persons?

In the event that this question is answered in the affirmative:

(2) Does the same protected legal interest exist in such a case of parallel application of European and national competition law?

(3) Furthermore, is it of significance for the application of the non bis in idem principle whether the first decision of the competition authority of a Member State to impose a fine took account, from a factual perspective, of the effects of the competition law infringement on the other Member State whose competition authority only subsequently took a decision in the competition proceedings conducted by it?

(4) Do proceedings in which, owing to the participation of a party in the national leniency programme, only a declaratory finding of that party’s infringement of competition law can be made also constitute proceedings governed by the non bis in idem principle, or can such a mere declaratory finding of the infringement be made irrespective of the outcome of previous proceedings concerning the imposition of a fine (in another Member State)?’

Consideration of the questions referred

The first and third questions

26 By its first and third questions, which it is appropriate to consider together, the referring court asks, in essence, whether Article 50 of the Charter must be interpreted as precluding an undertaking from having proceedings brought against it by the competition authority of a Member State and, as the case may be, fined for an infringement of Article 101 TFEU and the corresponding provisions of the national competition law on the basis of conduct which has had an anticompetitive object or effect in the territory of that Member State, where that conduct has already been referred to, by a competition authority of another Member State, in a final decision which that authority has adopted in respect of that undertaking, following infringement proceedings under Article 101 TFEU and the corresponding provisions of the competition law of that other Member State.

27 In that context, the referring court seeks, in particular, clarification of the relevant criteria for assessing whether the two national competition authorities have ruled on the same facts.

[Aubrey LaVentana]

Do you mean, like this?
“the United States Supreme Court rewrote the question presented to the Court for it to decide in NYSRPA v. Bruen. The question the justices will be deciding is:

‘LIMITED TO THE FOLLOWING QUESTION: WHETHER THE STATE’S DENIAL OF PETITIONERS’ APPLICATIONS FOR CONCEALED-CARRY LICENSES FOR SELF-DEFENSE VIOLATED THE SECOND AMENDMENT.’

SCOTUS Rules 24 and 14 limit the scope of the opinion to the question presented.

However, both sides did something very unexpected. Instead of arguing the question presented to the Court, they argued the original question presented in the cert petition, which was:

‘Whether the Second Amendment allows the government to prohibit ordinary law abiding citizens from carrying handguns outside the home for self-defense.'”

[Stephen Lathrop]

I wonder what work the parties thought, “ordinary law abiding,” was doing?

[Brett Bellmore]

Excluding any questions concerning the rights of felons, I suppose.

[Stephen Lathrop]

How does the label, “ordinary law abiding,” inform the question whether the carrier is a felon, or will be ten seconds from now? The work the label seems to attempt, but fails to deliver, is to reify a durable class that does not exist.

Unless the group so defined can be treated reliably as a class under the law, the label is useless. Given that every felon was previously law-abiding, given that some are felons in fact, but not before the law, the class is imaginary, and legally perverse.

A better class label, one which can be applied unambiguously, and alike to everyone who fits, and which excludes all who do not fit, is, “gun carrier.” Use that.

[Aubrey LaVentana]

This is not a class-action suit. Petitioners seek to have rights, which all people except felons have versus only an identifiable class, protected. Petitioners argue that only certain people identifiable as a class, or classes (paid security guard, public figure, government official) enjoy that right under New York law. If so, it’s not a right but a privilege.

[Martinned]

Sure, but felons can – and typically are – law abiding too.

[Aubrey LaVentana]

Felons are a class of person from whom certain rights have been removed through due process. Argue as you will about which rights the felon should not enjoy, and whether and how those rights can be restored. But they are an exception from an overall population that has rights.

[Stephen Lathrop]

ALaV — Your categories cannot be a reasonable basis for policy. The alleged law-abiding include many unidentified felons in fact. Individual members of the law-abiding will make themselves felons tomorrow. From the point of view of any legitimate public objective, the law-abiding class and the felon class together cannot form a basis to make a reasonable division—too many among the law-abiding are more dangerous with guns than many among the felons—the feckless, the insane, the drug dependent, the functionally blind, the palsied, and others may not be felons, but nevertheless include many individuals from whom guns should be withdrawn for policy reasons. Allegations will arise that some convicted felons—especially those who commit non-violent offenses—are not thereby accurately identified as more dangerous than others.

Arguably, treating public gun carrying as a privilege, and assessing candidates on a case-by-case basis, with a presumption in favor of the candidate absent a specific disqualification, provides a more reasonable basis for policy. Public figures and government officials should be as subject as anyone else to disqualifications.

[Aubrey LaVentana]

“Individual members of the law-abiding will make themselves felons tomorrow.”

That is not how due process works. If you dispute Heller’s determination that RKBA is indeed an individual right, don’t be shy, just say so, no need to clothe it in ‘reasonable bases for policy’ or claims that many people not already disqualified through due process should be.

As for felons overall, many of them need not be disqualified from gun ownership. Take it to Congress. It’s not a justification to disqualify people who you think don’t deserve it, or from your perspective, simply haven’t been caught yet.

Or are you proposing Beria’s ‘show me the man and I’ll show you the crime” or PKD’s ‘pre-crime’?

Bill Cosby’s “Dad! Why did you just hit me?” “That’s for that last time you did something and I didn’t catch you at it”?

[Stephen Lathrop]

It is how policy works. Policy is not a due process issue. Nobody is being accused of a crime.

Heller was wrongly decided. There can be no doubt that Scalia’s “originalism,” is bogus. There is no historical basis to suppose use of a firearm for personal self-defense is a right covered by the 2A. There is not a shred of historical evidence for that claim. The historical record has been ransacked by experts, and nothing has been found. If it had been, the quote and citation would have been Exhibit A in Heller. It is not there.

Gun enthusiasts who know nothing about historical analysis—like Scalia—think otherwise, because Scalia spammed them with historically irrelevant gun culture citations. Those amounted in total only to evidence that guns were used for self-defense during the founding era. That broke no historical ground. Everyone knew that already.

That non-discovery proves nothing with regard to the 2A. The historical task is to show from the record what the 2A protected, not what was happening more generally during the founding era. The militia right is the federal right. The historical record on that is copious, unambiguous, and unquestionable. Founding era citations for that abound, and they are explicit. Scalia got the history wrong, which means he got the originalism wrong.

That does not mean folks do not have a self-defense right. It means only that it is not protected in the federal constitution, except on the shaky basis of Scalia’s mistake. Call it penumbras and emanations, if you want to. Or living constitutionalism. Or follow Alito’s example, and rule out claims to rights not stated explicitly.

Your state constitution probably does protect the self-defense right explicitly. Rely on that.

[Aubrey LaVentana]

“rule out claims to rights not stated explicitly”

The right of the people to keep and bear arms shall not be infringed.

With or without the comma.

Explicit, regardless of your table-pounding.

[phoqueue]

An ordinary law abiding citizen is one who doesn’t fall into exceptional cases (felon, mentally ill, etc.).

Given that every felon was previously law-abiding

And treated differently before and after. What’s the problem?

some are felons in fact, but not before the law

So what? What’s the problem? There are things not visible to the law. You’re just learning that?

the class is imaginary, and legally perverse.

I have no clue what “legally perverse” is supposed to mean, but the class certainly isn’t “imaginary.” The class has members, and the class is relatively easy to understand and analyze.

[Stephen Lathrop]

phoqueue — “Legally perverse,” is supposed to mean, and does mean, it is a proposed legal standard which would undermine reasonable application of the law.

[Michael P]

I read it instead to mean that the carrier is not in the process of committing some independent crime. Felon-in-possession would be one way to not be an “ordinary, law abiding citizen”, but so would being a mugger, drug dealer, pimp, or other crimes that traditionally give a government an interest in prohibiting the carrying of a weapon.

[Aubrey LaVentana]

To exclude those persons or entities who receive unrestricted carry permits by virtue of political contributions or connections.

[captcrisis]

When the Court ends its opinion saying, “Judgment reversed”, it sure looks like they’re deciding a case.

[ReaderY]

I’m not sure changing the semantics here is going to result in a change in substance, or how it clarifies anything.

I think everybody understands that when an appelate court issues an opinion and an order in a case, it is addressing a lesser set of issues than the trial court did. Nonetheless, it is completely accurate to say an appelate court is making a decision. It’s a different, narrower decision from the kikd a trial court makes. But it’s a decision.

I don’t see how calling it something else clarifies anything.

[ReaderY]

Perhaps it might be slightly more accurate to say an appelate court makes a decision “in” a case. It’s true its decision does not determine every aspect of the case. But the distinction seems pedantic. It’s like refusing to split an infinitive or end a sentence with a preposition. It doesn’t really clarify or help communicate anything not already known.

[captcrisis]

An appeal means there’s been a judgment entered in the trial court, and the appellant wants the judgment either modified or reversed. The appellant brings only certain issues up for appeal which, it argues, are dispositive. If the appellate court agrees with the appellee (or agrees with the appellant but believes that the error was harmless), the judgment stands. If it agrees with the appellant, the judgment is reversed or modified. Some appellate courts have the power to see clear error on an issue without either party bringing it up, and on their own can reverse or modify.

Given the above, one might say that the appellate court decides “issues”, but the effect is to make a decision as to the judgment: either leave it alone, or reverse or modify it.

How is this not clear to anyone? I’ve been a lawyer for 30 years but even given my well-developed powers of verbosity I don’t think I could write an entire article about it.

[Stephen Lathrop]

ReaderY, do you suppose there might be implications for the facts of the case? Could it be that a requirement to consider cases, instead of questions, implies also a requirement that the appellate court make do with the facts established by the prior record of the case.

Were that true, it would have made a substantive difference in the outcome of the Citizens United case, for instance.

[Bored Lawyer]

“Could it be that a requirement to consider cases, instead of questions, implies also a requirement that the appellate court make do with the facts established by the prior record of the case.”

Wrong. Appellate courts can review factual findings, albeit under the deferential “clear error” standard. That happens, although rarely.
As opposed to legal determinations, which are reviewed without deference. Which is why appellate courts generally prefer that route. (And why appellate decisions are more useful for later cases. If a case announces a principle of law, that can apply in hundreds of later cases. If it makes a factual finding, that only relates to that case, and maybe another case with the same parties.)

[Stephen Lathrop]

Bored Lawyer — I want the facts proved at trial to determine boundaries an appellate court must decide within. I believe that is an important safeguard against judicial policy making, provided by the Cases and Controversies clause. Without it, appellate courts are left free to assert made-up facts, and use them to justify not just case outcomes, but policy to cover, as you say, hundreds of later cases.

For instance, in Citizens United, there is a gratuitous and nonsensical “fact” added to the decision—a finding by the Court that an appearance of political influence produced by unlimited political spending will not engender public distrust in the political process. As an assertion of fact, that could never be proved; it is preposterous. It appears to have been added to eliminate public perception of corruption of the political process as grounds for appeal in subsequent cases. No basis is cited to decide any such “factual” question. It comes right out of the blue in the decision, without further discussion.

[Bored Lawyer]

Thanks for letting us all know what you “want.” If you want to know what courts in the US do, read my comment.

[Stephen Lathrop]

I think the OP is doing a better job than you are. More insightful, too.

More generally, I I think it is a bit obtuse to read a proposal to alter what courts in the U.S. do, and then suggest that readers rely on you to set them straight with the status quo. It’s like you think question begging is an important principle.

[Noscitur a sociis]

As I understand it, Prof. Johnson’s claim is that the Supreme Court’s practice has changed over time in this regard.

[Bored Lawyer]

This post is not accurate. The “case or controversy” requirement is very much one in the Supreme Court, as shown by the numerous standing decisions.

Not every question of law has to be determined to determine every case. Lower courts do this all the time — there are two issues that might decide the case, and the court says, we have determined Issue 1, so we don’t need to get into Issue 2, rather one side wins, the other loses, and Issue 2 remains open for another day (or maybe never).

The Supreme Court’s jurisdiciton, which is now almost completely discretionary, allows it to pick and choose which issues it will decide and which it won’t. But those issues still have to control, or at least affect, the case, otherwise it’s an advisory opinion.

[Voize of Reazon]

The federal judicial power that extends to “cases and controversies” is exercised by the courts collectively. Sometimes the process involves more than one court. When it does it is no more a requirement that each action of each court settle a case, than it is that each ruling on a motion in a single court must settle a case.

[EscherEnigma]

That’s a lot of sophistry, but at the end of the day, it’s still wrong.

The SCOTUS doesn’t have to decide cases, that is true. When it chooses, it can “answer questions” and send that back to the relevant lower court to figure out the case.

But most of the time, it is very much deciding the case, and the lower courts are just doing the paperwork. It’s similar to how if your boss says “you’re fired!” They aren’t going to do the paperwork to terminate your employment, but they are very much the one that “decided” to end your employment.

[Stephen Lathrop]

I do hope the ability to fire for any reason, or for no reason, is not now become the model for judicial decision making. But you do seem to have struck close the truth.

[SRG]

As, in cert cases at least, SCOTUS remands the case back to the appellate courts “for further proceedings not inconsistent with this opinion”, an appellate court makes the decision – after SCOTUS has told it what the decision is to be.

Except in the most anally technical sense, that looks like SCOTUS making a decision.

[Bored Lawyer]

Depends on the case. Sometimes, an appellate court decides the case on one ground and the Supreme Court reverses it on that ground. But there may be other reasons the same party should win that neither court took up. On remand, the lower court now has to consider that issue. Might be the appeals court or the trial court, depending on how things played out before.

[SRG]

Yes, fair enough.

[Don Nico]

For the most part this OP is about a distinction lacking a difference.
There’s nothing here to see; move on.

[Noscitur a sociis]

If Prof. Johnson is correct that practice in this regard has changed over time, that could be something worth seeing. I hope he doesn’t take too long to show it to us.

[Stephen Lathrop]

Early returns from the commenters suggests a drift into alignment by the lawyers, against the OP, and across partisan lines. Interesting. Suggests the OP is onto something, and the lawyers don’t like it.

[Gasman]

See the post from Josh Blackman just an hour earlier today…

Per Blackman:
“5/9/1974: Resolution to impeach President Nixon introduced in the House of Representatives. On 7/24/1974, the Supreme Court would decide U.S. v. Nixon.”