The Volokh Conspiracy

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Supreme Court

Text and History for Thee but Not for Me?

The Court makes other people follow the text and history, but at least when it comes to certiorari, the justices lose their religion.


First of all, thanks to Eugene for letting me guest post this week. If you'd like to learn more about The Origins of Supreme Court Question Selection, please check out the full essay.

The story I've told this week suggests the Court's practice of preselecting questions for review presumes a power that neither Congress nor the common law provided. Instead, the justices took the power for themselves, despite promising Congress they would not do so. How then can the practice be defended?

Probably the best argument is that it helps the Court do its job. Even if we set aside the larger conversation about what the Court's job is or should be, this is a functionalist argument. The problem is that the justices, especially the conservatives on the Roberts Court, don't really go for functionalist arguments when the text and history are clear. Consider a couple of examples:

SAS Institute, Inc. v. Iancu involved the scope of inter partes review in the Patent Office. To begin this process, one party challenges a previously issued patent by filing a petition. The petition must identify "with particularity each claim challenged." If the Director determines an inter partes review is appropriate, the review culminates in "a final written decision with respect to the patentability of any patent claim challenged by the petitioner." The Court took up the question of whether the Patent Office must "resolve all of the claims in the case, or may choose to limit its review to only some of them." The Court said the Patent Office had to answer all of the questions.

The majority compared two sections of the relevant legislation. One section requires a determination of "any patent claim challenged by the petitioner." The other gives the Director the power to investigate individual questions. Observing the different language, the Court asserted that, "If Congress had wanted to give the Director [power to choose what questions to answer], it knew exactly how to do so---it could have simply borrowed from the statute next door."

The language was perfectly clear. The Director gets to make "a binary choice---either institute review or don't." The majority reasoned that, though the statute "invests the Director with discretion on the question whether to institute review, it doesn't follow that the statute affords him discretion regarding what claims that review will encompass."

The Court was unimpressed by the Director's argument that allowing him to select the important questions "is efficient because it permits the Board to focus on the most promising challenges and avoid spending time and resources on others." Such "[p]olicy arguments," the Court said, "are properly addressed to Congress." Further, "[t]he Director may (today) think his approach makes for better policy, but policy considerations cannot create an ambiguity when the words on the page are clear." In the end, the Court decided that "[n]othing suggests the Director enjoys a license to depart from the petition and institute a different … review of his own design."

It is hard to read this language and not think of the similarly contrasting language in the statute governing the Court's certiorari jurisdiction. That statute links certiorari to cases and certification to questions. If Congress had wanted to give the Court certiorari jurisdiction over questions, it knew exactly how to do so---it could have simply borrowed from the same section. Congress gave the Court "discretion on the question whether to institute review, but it doesn't follow that the statute affords" the Justices "discretion regarding what claims that review will encompass." Perhaps there are policy arguments in favor of allowing the Court to preselect important questions "because it permits [the Court] to focus on the most promising challenges and avoid spending time and resources on others." But aren't these "policy questions …properly addressed to Congress"? The Court may think its current approach "makes for better policy, but policy considerations cannot create an ambiguity when the words on the page are clear."

Iancu dealt with the administrative state, but the Court has had little time for functionalist arguments from circuit courts either. In BP P.L.C. v. Mayor of Baltimore, Baltimore sued various energy companies in state court, and defendants removed the case to federal court. Baltimore proffered eight grounds for removal, one of which invoked 28 U.S.C. § 1442(a)(1). The district court rejected all eight and remanded the case to state court. The defendants appealed.

Ordinarily, remand orders are not appealable, but under the Removal Clarification Act, "orders" are appealable if the case was removed pursuant to § 1442. The Fourth Circuit limited its review to the section 1442 claim and affirmed. The Supreme Court granted certiorari and reversed.

Justice Gorsuch's opinion chastised the lower court for only reviewing one of the questions instead of the entire case. Gorsuch looked up "order" in Black's Law Dictionary, which defines it as a "written direction or command delivered by … a court or judge." Thus, the proper scope of appellate review was the direction or command, not just the answer to the particular § 1442 question.

Note, however, that the Court has certiorari jurisdiction over "final judgments and decrees" of state and territorial courts. A final judgment is "[a] court's final determination of the rights and obligations of the parties in a case." Surely a court's review of a "judgment" (to say nothing of a "case") should be no less comprehensive than review of an order.

Second, the actual case before the Court in BP, according to the Court, contained at least eight questions: the eight grounds for removal. The Court rebuked the Fourth Circuit for limiting review to one of these eight questions. In an opinion holding an appellate court reviewing a remand order should consider every part of that order, the Court refused to consider any of the grounds proffered by the petitioners for removal. Nor did it give Baltimore the opportunity to defend the judgment below on all grounds available in the record. And why not? Because doing so would "not implicate the circuit split that we took this case to resolve."

That sure sounds like a functionalist argument. Baltimore tried that in this case, arguing that limiting review to the section 1442 issue would serve efficiency goals. The Court did not bite. It explained that, "'[e]ven the most formidable' policy arguments cannot 'overcome' a clear statutory directive."

In both Iancu and BP, the Court forced decisionmakers to review the full case because that's what the statute says. The majority had no time for functionalist arguments because the text and the history were clear. I'm happy to assume the Court got those questions correct, but for the life of me, I don't know how they square either of them with their own practice of preselecting questions on certiorari.

NEXT: Today in Supreme Court History: May 13, 1912

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  1. "policy considerations cannot create an ambiguity when the words on the page are clear."

    Paging Mr Lathrop, Mr Stephen Lathrop.

  2. It's not a good idea for a nation to be ruled by an oligarchy of 9. Among others, Jefferson had some thoughts about this.

    1. "a nation to be ruled by an oligarchy of 9"

      So, for example, that 9, or a bare majority of them, want to turn a specific power away from themselves and back to the States.

      Or possibly they will issue a ruling, again with a bare majority, prohibiting an oligarchy in the NY state legislature from requiring someone to show 'good cause' to exercise an explicit right.

    2. Every nation is ruled by an oligarchy.

  3. As a practical matter, this isn't going to change. I do wonder if statutory codification of the Court's current practice when it comes to Writs of Certiorari and questions presented might have some use. If the statute makes this true when it comes to discretionary appeals, it might help make clear that the power doesn't exist for mandatory appeals (to the extent that they still exist). It might even make the Court more aware of this judicial history in case Congress were to later amend the statute related to the Court's jurisdiction.

    I think there's a similar issue when it comes to the Court's original jurisdiction instead of appellate jurisdiction - especially cases at law instead of equity. Founding level historic practice makes clear that parties in a case of original jurisdiction of law are entitled to a trial by jury. No one has tried to enforce this because they're worried the Court will decline jurisdiction and some Justices have suggested that it shouldn't be a trial by jury, but the law here is actually surprisingly clear.

  4. This issue is just plain fascinating.

    It's a classic example of a powerful governmental body doing what it wants to because no one can tell it that it can't do it. In effect, abuse of power.

    I say that not to start a fight. I am not sure I would criticize the Court's certiorari procedure from a policy standpoint.

    But putting policy wisdom aside, this disconnect between the statute and the practice, born at a time when the Court was more blithe about fidelity to statutory text, and much more willing to just make sh*t up, is looking pretty awkward nowadays.

  5. Professor Johnson,
    Is there is any way to challenge the Supreme Court's apparently wrongful practice? Can litigants file an objection to an order granting certiorari only in part? Could such an objection have any practical effect? Or do we just wait for the Supreme Court to recognize their error?

  6. This is really the first post of several that makes the main argument coherent. The statutes granting the Supreme Court discretionary appelate review power contain language mirroring statutes giving agencies review power which the Supreme Court held requires the reviewing agency to review the entire case rather than limiting review to specific questions. Why not say this several posts ago?.

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