The Volokh Conspiracy
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Federal Appellate Judges Can Petition the Supreme Court to Review a Question
Litigants often file "petitions for certiorari" asking the U.S. Supreme Court to review a case, or particular questions within the case. The overwhelming number of cases that reach the Court through such petitions. And occasionally one hears someone joking that a concurring or dissenting opinion in a court of appeals decision is the judge's own petition for certiorari: What that means is that the judge is pointing out that the court of appeals' rule is either incorrect or in conflict with other courts', and is hoping that when the losing litigant petitions for certiorari, the Court will read that dissent and perhaps be encouraged to grant the petition and review the case.
But it turns out that federal appellate judges (as few as a two-judge majority on a court of appeals panel) can themselves ask the Supreme Court to review a question, though technically the procedure is called a "certification" rather than a petition. Here's the federal statute, 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.
Supreme Court Rule 19 further elaborates on this.
To be sure, in practice the Court almost never agrees to hear such certified questions; the last time it did that was in 1981, in Iran National Airlines Corp. v. Marschalk Co. Inc. Here's a 2009 opinion (U.S. v. Seale) in which Justices Stevens and Scalia urged the Court to accepted a certification, but unsuccessfully:
Statement of Justice Stevens, with whom Justice Scalia joins, respecting the dismissal of the certified question.
This certificate presents us with a pure question of law that may well determine the outcome of a number of cases of ugly racial violence remaining from the 1960s. The question is what statute of limitations applies to a prosecution under 18 U. S. C. §1201 commenced in 2007 for a kidnaping offense that occurred in 1964.
James Ford Seale was found guilty of violating §1201, a provision that does not include its own limitations period. Title 18 U. S. C. §3281 provides that "any offense punishable by death" may be prosecuted "at any time without limitation," whereas §3282(a) imposes a 5-year period of limitations for all other offenses "[e]xcept as otherwise expressly provided by law." In 1964 a violation of §1201 was a capital offense when the victim was harmed, and since 1994 a violation of §1201 has been a capital offense when the kidnaping results in the loss of life. But for more than two decades in between, Seale's crime was not punishable by death.
Several developments accounted for this. In 1968 this Court held that the death penalty provision in the old §1201 was unconstitutional because it applied "only to those defendants who assert the right to contest their guilt before a jury," United States v. Jackson, 390 U. S. 570, 581, and in 1972 we cast significant doubt on the constitutionality of death penalty laws nationwide, Furman v. Georgia, 408 U. S. 238 (per curiam). Following Furman, Congress repealed the death penalty clause of §1201, see Act for the Protection of Foreign Officials and Official Guests of the United States, Pub. L. 92-539, §201, 86 Stat. 1072, which had the effect of changing the applicable statute of limitations from §3281 to §3282.
In this case, the District Court held that the 1972 repeal did not retroactively change the character of a violation of §1201 as a capital offense within the meaning of §3281—and therefore that the prosecution of Seale could go forward—but a panel of the Court of Appeals reversed. 542 F. 3d 1033 (CA5 2008). In response to the Government's petition for rehearing en banc, the full court vacated the panel decision and, by an equally divided 9-to-9 vote, affirmed the District Court's ruling on the limitations defense. 570 F. 3d 650 (CA5 2009) (per curiam); see also id., at 651 (DeMoss, J., dissenting) (noting the affirmance's "nominal" nature in light of the deadlock). Following the procedure authorized by Congress in 28 U. S. C. §1254(2) and by this Court's Rule 19, a majority of the members of the en banc court voted to certify this question of law to us for decision.
The question is narrow, debatable, and important. I recognize that the question reaches us in an interlocutory posture, as Seale appealed his conviction on numerous grounds, and that "[i]t is primarily the task of a Court of Appeals to reconcile its internal difficulties," Wisniewski v. United States, 353 U. S. 901, 902 (1957) (per curiam). Yet I see no benefit and significant cost to postponing the question's resolution. A prompt answer from this Court will expedite the termination of this litigation and determine whether other similar cases may be prosecuted. In these unusual circumstances, certification can serve the interests not only of legal clarity but also of prosecutorial economy and "the proper administration and expedition of judicial business." Ibid.
The certification process has all but disappeared in recent decades. The Court has accepted only a handful of certified cases since the 1940s and none since 1981; it is a newsworthy event these days when a lower court even tries for certification. Section 1254(2) and this Court's Rule 19 remain part of our law because the certification process serves a valuable, if limited, function. We ought to avail ourselves of it in an appropriate case. In my judgment, this case should be briefed and set for argument.
And from a recent article by Prof. Ben Johnson:
Interestingly, the statutory language regarding certification is also clearly mandatory. See Felix Frankfurter & James M. Landis, The Business of the Supreme Court at October Term, 1929, 44 Harv. L. Rev. 1, 35 (1930) ("Petitions for certiorari the Court can deny, but questions certified must be answered." (emphasis omitted)); James William Moore & Allan D. Vestal, Present and Potential Role of Certification in Federal Appellate Procedure, 35 Va. L. Rev. 1, 3 (1949) ("Congress determines what courts may use certification and when, but within these limits the certifying court determines on what matters the reviewing court must pass. In other words the jurisdiction of the latter court is obligatory at the option of the certifying court."); Amanda L. Tyler, Setting the Supreme Court's Agenda: Is There a Place for Certification?, 78 Geo. Wash. L. Rev. 1310, 1321, 1323-24 (2010).
Yet the Court has effectively ignored this obligation. It has not accepted a certified question since 1981. See Iran Nat'l Airlines Corp. v. Marschalk Co., 453 U.S. 919 (1981) (mem.); United States v. Seale, 558 U.S. 985, 986 (2009) (statement of Stevens, J., respecting dismissal of certified question) (noting that the Court had accepted no certified cases since 1981). The leading Supreme Court treatise reports that the Justices only answered four certified questions from 1946 to 2017. Shapiro et al., supra note 179, at ch. 9, § 1. My research has found four additional cases, bringing the total to a still abysmally low eight. The four Shapiro and his coauthors include are United States v. Rice, 327 U.S. 742 (1946); United States v. Barnett, 376 U.S. 681 (1964); Moody v. Albemarle Paper Co., 417 U.S. 622 (1974); and Iran National Airlines Corp., 453 U.S. 919. To these I would add American Stevedores, Inc. v. Porello, 330 U.S. 446 (1947); Shade v. Downing, 333 U.S. 586 (1948); Woods v. Hills, 334 U.S. 210 (1948); and Alison v. United States, 344 U.S. 167 (1952).
Given the Court's unwillingness over the last 44 years to accept such certified questions, I expect that few lower court judges would even be inclined to try. On the other hand, there are new Justices now, and new lower court judges, so who knows?
UPDATE: See also Prof. Aaron Nielson's The Death of the Supreme Court's Certified Question Jurisdiction. An excerpt:
The question, then, is not whether certification is dead, but why it is dead. Or, rather, who killed it? The Supreme Court did, although not without its accomplice, the courts of appeals. Certification's premise, allowing, as it does, an appellate court in its discretion to ask the Court to answer a question, is inconsistent with the Court's conception of itself. As Professors Frankfurter and Landis noted many years ago, "the Supreme Court [is] hostil[e] to a procedure by which the Court may be called upon to make rulings without the benefit of a decision below." Similarly, Moore and Vestal explained that the Court questioned certification due to its "fear that an extensive use of certification would unduly enlarge its obligatory jurisdiction," thereby "frustrat[ing] the Court's proper functioning as a policy-determining body …."
The murder weapon has been passive aggression. As Moore and Vestal observed, although "the Court supposedly has no discretion in certifications, which invoke its obligatory jurisdiction, pragmatically it is able to control the employment of the procedure." In particular, by means of "[c]urt per curiam dismissals," the Court successfully discouraged certification: "[w]henever the Supreme Court … dismissed a certificate from a lower court, that court … usually refrained from certifying for a number of years." Indeed, in Wisniewski v. United States in 1957, the Court—contrary to the statutory text —went so far as to dismiss with a one-page per curiam a certified question on the grounds that the Court's jurisdiction is too "exceptional" to merit resolving a mere intra-circuit split. The Court decreed that
[i]t is … the task of a Court of Appeals to decide all properly presented cases coming before it, except in the rare instances, as for example the pendency of another case before this Court raising the same issue, when certification may be advisable in the proper administration and expedition of judicial business.
The judges of the courts of appeal got the message. As one appellate judge succinctly put it: "[t]he attitude of the Supreme Court has not encouraged the use of this technique …."
The courts of appeals, however, have been complicit. Perhaps driven by the Court's hostility to the certification procedure, appellate courts have almost completely stopped certifying questions, and some have even embraced the Court's point of view. For example, in a per curiam joined by no less than Chief Judge Learned Hand, the Second Circuit explained that it would only certify a question if "no petition for certiorari is available to the aggrieved party." Laying history and congressional will aside, the panel explained: "we can see no reason for imposing an appeal upon the Supreme Court, which it does not choose to take of its own motion," because "[i]t is not for us to decide what matters are of enough importance to require decision by that court; the control of its docket should rest exclusively in its own hands." The Supreme Court's animosity, mingled with this attitude of some appellate courts, has slowed the use of certified questions to the point where it is unclear how many judges today even know this option exists—which, given Seale, is probably just as well.
