The Volokh Conspiracy

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Justice Sotomayor: Summary Reversal on the "Shadow Docket" Caused A "Significant Change" In Federal Law

Justice Barrett countered that the SumRev "did not change the content of federal law."


On Wednesday, the Supreme Court decided Cruz v. Arizona. The posture here is a bit complicated. Simmons v. South Carolina (1994) held that during sentencing, the judge must notify the jury that a defendant would be ineligible for parole. For some time, the Arizona courts held that the state's sentencing scheme did not trigger application of Simmons. In Lynch v. Arizona (2016), the Supreme Court summarily reversed the Arizona Supreme Court, holding that the failure to apply Simmons was an error.

Cruz filed a motion for state postconviction relief based on Arizona Rule of Criminal Procedure 32.1(g). Cruz argued that Lynch caused "a significant change in the law that, if applicable to the defendant's case, would probably overturn the defendant's judgment or sentence." The Arizona Supreme Court, relying on Rule 32.1(g), held that Lynch did not cause a "significant change in the law."

On appeal, the United States Supreme Court held that the Arizona Supreme Court was wrong about Lynch, which did cause a "significant change" in the law. Moreover, the state court's interpretation of its rule could not be deemed an "adequate and independent state-law ground for the judgment." (Abbreviated in the lingo as an AISG) The vote here split 5-4. The Chief Justice and Justice Kavanaugh allowed Justices Sotomayor, Kagan, and Jackson to form a majority opinion. Justice Barrett wrote a dissent, which was joined by Justice Thomas, Alito, and Gorsuch.

Based on my quick read, I am inclined to agree with Justice Barrett's dissent. In the past, the bar for finding an AISG was quite high. The dissenters would let state courts perform their own role. Let 51 imperfect solutions bloom. Alas, the members of the majority tend to favor federal judicial supremacy.

My interest here focuses on a narrow aspect of the opinion: Lynch was a summary reversal. A so-called "SumRev" occurs when the Supreme Court, in one fell swoop, grants a petition for writ of certiorari, vacates/reverses the lower court judgment, and remands the case for further proceedings. A SumRev is decided without the benefit of oral argument, and the majority opinion is generally signed per curiam.

Justice Thomas dissented in Lynch, joined by Justice Alito. (Justice Scalia had passed away three months earlier.) Thomas faulted the Court for deciding the case as a SumRev:

Today's decision—issued without full briefing and argument and based on Simmons, a fractured decision of this Court that did not produce a majority opinion—is a remarkably aggressive use of our power to review the States' highest courts.

We are incessantly told that the Supreme Court should not make "significant changes" in the law on the so-called "Shadow Docket." Yet, the holding of Cruz is that Lynch–a per curiam case decided without the benefit of oral argument and full-dress briefing–caused a "significant change" in the law. Indeed, in Lynch, the Supreme Court overruled many decisions from the Arizona Supreme Court. Moreover, Lynch was decided with an in forma pauperis petition. There were not even any amicus briefs filed!

Justice Sotomayor explained:

The dissent argues that this case did present a new context because the Arizona Supreme Court had never before applied Rule 32.1(g) to a summary reversal. There was no reason, however, to treat this case any differently than past cases. Whereas the Arizona Supreme Court had previously looked to the effect of an intervening federal or state decision on Arizona law, supra, at 9–10, here it focused exclusively on whether there had been a change in federal law. The court thus disregarded that Lynch overruled "previously binding case law" in Arizona, the "archetype" of a significant change in the law.

The shadow docket! It slices! It dices! It makes julienne fries! Is there anything a SumRev cannot do?

Justice Barrett disagreed. She countered that Lynch did not "change any legal doctrine."

Cruz's case, however, raised a question of first impression: whether a "significant change" occurs when an intervening decision reaffirms existing law, but rectifies an erroneous application of that law. That was the effect of Lynch v. Arizona, 578 U. S. 613 (2016) (per curiam), which corrected the Arizona Supreme Court's application of Simmons v. South Carolina, 512 U. S. 154 (1994) (plurality opinion), and its progeny. An intervening decision like Lynch, which undisputedly did not change any legal doctrine, has no analog in Arizona's Rule 32.1(g) jurisprudence. . . . Lynch, by contrast, did not change the content of federal law and therefore did not change the law in Arizona. 

There you have it.

On Wednesday, I did a debate on the Second Amendment at the University of Texas with Steve Vladeck, my old sparring partner. Steve mentioned that his new book about the "Shadow Docket" will soon go to press. It may be too late, but Cruz v. Arizona may warrant a mention.