When Court of Appeals Decide Issues Pending Before the Supreme Court

The practice is not consistent.

On October 7, the Supreme Court heard oral arguments in Chiles v. Salazar. This case will decide the constitutionality of Colorado's ban on conversion therapy. A decision in that case is expected at some point by the end of June.

As the Supreme Court deliberates on this issue, conversion therapy laws are still on the books in other states. For example, Catholic Charities of Jackson v. Whitmer presents a challenge to Michigan's ban on conversion therapy. The District Court upheld the law, and an appeal was docketed at the Sixth Circuit in February 2025. The Supreme Court granted cert in Chiles on March 10, 2025. In a joint motion, the Defendants asked the Sixth Circuit to put the case on hold, while the Plaintiffs asked the Sixth Circuit to move forward in the ordinary course.

The case was argued before the Sixth Circuit on October 23, about two weeks after the Supreme Court heard argument in Chiles. And two days ago, on December 17, a divided panel of Sixth Circuit found the conversion therapy law was unconstitutional. Judge Kethledge wrote the majority opinion, which Judge Larsen joined. Judge Bloomekatz dissented. I will put aside the merits for now.

Judge Kethledge explained why the majority was deciding the case, even as Chiles was pending. He frames his decision in terms of the federal court's unflagging duty to exercise jurisdiction:

The defendants also argue that we should forbear from deciding this appeal and instead simply await the Supreme Court's decision in a pending case that presents the same issue as the one here. But the Supreme Court has repeatedly affirmed that "a federal court's obligation to hear and decide cases within its jurisdiction is virtually unflagging."

Moreover, this case involves a request for a preliminary injunction, which is time sensitive:

And orders granting or denying a preliminary injunction are by definition time-sensitive. Their effect is immediate, because they set the status quo during the case's pendency—only to be superseded months or years later by the court's final judgment. Meanwhile, the Supreme Court's decision could come as late as the end of June 2026; and the plaintiffs make a strong claim that the status quo here—they wish to speak in a certain way, but cannot—violates the federal Constitution.

Finally, Judge Kethledge suggests his opinion might actually help the Supreme Court's deliberations:

Nor would our decision intrude in the slightest upon the Supreme Court's work; to the contrary, the Court prefers to have more circuit-court opinions before deciding an issue, rather than fewer. We see no reason to sit on our jurisdiction in this appeal—so we proceed to exercise it.

Judge Bloomekatz's dissent addressed the abeyance in depth.

I am aware of no case where we have raced to decide an appeal when the Supreme Court has argued essentially the same case before we have. I would not make this the first. In forging ahead despite Chiles, the majority opinion appears to break new ground. Our general practice is to wait for the Supreme Court's guidance when it is slated to decide a case that will govern our analysis, especially when the Supreme Court's review is further along than ours. [FN2] Our sister circuits do the same. [FN3] The majority opinion does not cite to a single example where we pushed forward and resolved an appeal in circumstances like these.

Bloomekatz writes further that previous courts that held cases in abeyance did not violate their unflagging duty to exercise jurisdiction:

Is the majority opinion saying that each time we held a case pending a Supreme Court decision we abandoned our "unflagging" duty? That is quite an indictment of our well-settled practice, our sister circuits' practice, and our broad power to order abeyance.

I have been tracking this issue for some time. In short, federal courts of appeals have adopted inconsistent practices. Here are several examples I have written about.

First, let's consider the Obamacare litigation. On August 12, 2011, the Eleventh Circuit found that the individual mandate was unconstitutional. The cert petition in NFIB v. Sebelius was filed on September 28, 2011. At that point, there was a circuit split between the Eleventh Circuit and the Sixth Circuit, so everyone knew this case was headed to the Supreme Court. Yet other courts plowed on. On September 8, the Fourth Circuit dismissed the challenges to the ACA. Two weeks later, on September 23, 2011, the D.C. Circuit heard oral argument in Seven Sky v. Holder. This panel, which included Judges Laurence Silberman and Brett Kavanaugh, decided the case on November 8, 2011--again, after the cert grant. As I explained in my first book, Unprecedented, Judge Kavanaugh's opinion in that case helped shape the government's taxing power argument before the Supreme Court, and ultimately influenced Chief Justice Roberts's saving construction.

Second, a similar dynamic occurred in the confederate license plate case. On March 23, 2015, the Supreme Court heard oral argument in Walker v. Texas Division, Sons of Confederate Veterans. This case considered whether Texas could deny a special vanity plate to the Sons of Confederate Veterans. On December 11, 2012, the Second Circuit heard oral argument in Children First Foundation, Inc. v. Fiala. This case presented a very similar case, in which New York denied a "Pro Life" vanity plate. On May 22, 2015, the Second Circuit ruled for New York. The Supreme Court ruled on June 18, 2015. Ultimately, Justice Alito's Walker dissent cited Fiala. At the time, I was critical of the Second Circuit's post-cert decision. Here, this case was argued by the Second Circuit after the Supreme Court oral argument, and decided before the Supreme Court rule.

Third, there was overlap between the Supreme Court and the Fourth Circuit in the travel ban litigation. On February 15, 2018, the en banc Fourth Circuit declared Travel Ban 3.0 unlawful. But the Supreme Court had already granted cert in Trump v. Hawaii on January 19, 2018. Argument would be held on April 25, 2018. Perhaps the Fourth Circuit's opinion offered some of the Justices alternate arguments to consider. Indeed, one commentator praised this aspect of post-cert circuit opinions. At the time, I described this decision as a judicial "amicus brief." That is, another document to influence the Supreme Court justices.

Fourth, the Fifth Circuit has adopted inconsistent abeyance practices in abortion cases. Roe's "ad hoc nullification machine" affects all facets of federal court jurisdiction. Consider the lower court litigation in Dobbs. The Fifth Circuit panel heard oral arguments on October 7, 2019 (Higginbotham, Dennis, and Ho). Three days earlier, certiorari had been granted in June Medical from Louisiana. One of the questions presented in the Louisiana case was whether third-party standing was permissible. In the Mississippi Case, the Plaintiffs included "Jackson Women's Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors." Dobbs case raised the same third-party standing issues that were presented in June Medical. There were no individual plaintiffs in Dobbs. The Fifth Circuit Dobbs panel did not hold the case in abeyance. Instead, it resolved the case barely two months later on December 13, 2019. June Medical would be argued on March 4, 2020.

Fifth, the Fifth Circuit found the CFPB unconstitutional on the same day Seila Law was argued. What a coincidence! On Tuesday, March 3, at 10:00 a.m., the Supreme Court heard oral arguments in Seila Law v. LLC. That case considered the constitutionality of the CFPB's structure. (I analyzed the arguments here.) At some time that same day (I am not sure the exact time), a divided Fifth Circuit panel (Higginson and Higginbotham, with Smith in dissent) decided CFPB v. American Check Cashing. This case upheld the constitutionality of the CFPB's structure. At the time, I wrote:

Now, the Justices can consider the Fifth Circuit opinion, without any substantive response. Issuing the decision the day of arguments, and before the Justices' conference, is the worst possible option. It would have been better to drop the opinion last week, so the parties could at least talk about it before the Court.

A few week later, the en banc Fifth Circuit sua sponte vacated American Check Cashing, so it had little impact on Seila Law.

***

To summarize, the practice here is inconsistent. In the Obamacare litigation, the D.C. Circuit decided the case after the Supreme Court had already granted cert in NFIB, but before Supreme Court oral argument. In the license plate case, the Second Circuit argued the case before the Supreme Court, and decided it after Supreme Court oral argument. In the travel ban litigation, the en banc Fourth Circuit ruled after the Supreme Court had already granted cert, but before Supreme Court oral argument. In in Dobbs, the Fifth Circuit heard oral arguments after the cert grant in June Medical, and argued the case before Supreme Court oral argument. In the CFPB case, the Fifth Circuit upheld the structure of the agency on the same day as Supreme Court oral argument.

I am not aware of another case where the lower court argued and decided an issue  after a Supreme Court cert grant and oral argument.

Please email me if I'm missing any other relevant cases.

Comments

[loki13]

If you want to do serious research on the issue, I would suggest considering the following-

1. As a general rule, the Supreme Court actually likes having different approaches and reasoning to consider; the idea of having various district courts and appellate courts "weigh in" is well-known to all of us (you'll also see it referred to as "percolating").

2. Different procedural postures in litigation matter. If a case is before a Court on an issue of preliminary injunction (for example) that is different than if it is on an appeal of final judgment in terms of the status quo and the equities, and the need for a court to issue a decision. Again, an appellate court might be more willing to issue an opinion w/r/t a preliminary injunction given that it has an effect immediately pending the often lengthy time it takes for SCOTUS to issue an opinion.

3. Finally, you'd have to look at what the litigants ask for. Do one or both of the parties want the court to wait? If the parties seek abeyance (a stay) of the proceedings pending a Supreme Court ruling, that's one thing. If only one, or neither, seeks it ... that's another.

You might want to tease out these factors a little more instead of just looking at the timeframes, since there isn't a jurisprudential rule that governs these issues- as a general rule, lower courts do not have to wait just because a case is pending before the Supreme Court, and it's always possible that the issue that the Supreme Court decides the case on may not, in fact, resolve the exact issue that is before the lower court (SCOTUS may DIG it, or issue a ruling on a collateral issue like standing, or issue a ruling that does not control for the facts before the lower court, etc.).

But this presumes that (1) you are interested in actual legal analysis, and (2) you read the comments.

[Bob from Ohio]

"3. Finally, you'd have to look at what the litigants ask for."

"In a joint motion, the Defendants asked the Sixth Circuit to put the case on hold, while the Plaintiffs asked the Sixth Circuit to move forward in the ordinary course."

Maybe read the post before your anti-Blackman knee jerks.

[Joe_dallas]

Starting on page 14 of the opinion (the dissent), bloomekatz, grossly distorts the state of the medical and mental health treatment and the related effectiveness of the various treatments.

but if that is what it takes to embrace the destruction and mutilation of minors, so be it so that haters will continue to have the opportunity to mutilate those suffering from a mental illness.

[MollyGodiva]

Forced Conversion Therapy is child abuse. Woe is a country that declares a constitutional right to abuse children.

MAGAs are pure evil.

[Joe_dallas]

Its far more evil to mutilate children at the alter of your woke god.

[MollyGodiva]

You mean medical treatments to a recognized disorder conducted with the consent of everyone? Also what you speak of is very rarely done with minors.

[Joe_dallas]

Yes a bogus medical treatment - of course you fail to grasp that it is with the consent of everyone without full knowledge of the consequences. Again its is sacrificing children at the alter of your woke god.

[MollyGodiva]

Kinda like when MAGAs were feeding their kids hose paste during covid?

[Joe_dallas]

The evidence supporting positive outcomes is exceedingly weak. The evidence of long term damage is exceeding strong. Tell that you man dressed as a woman that he needs to have his prostate checked out. That male will always be a male, That female will always be a female.

Not the least of which is surprising, though obviously beyond those who hate people suffering from a mental illness who likewise prefer to use them as toys with their medical experimentation. I am pointing directly at you and other woke.

[Rossami]

It's talk-therapy, not electroshock. (We know it's only talk-therapy because the case was resolved on 1st Amendment grounds.) Talking to people is not child abuse.

But please continue to hyperventilate and exaggerate. It shows how totally out of touch you are with mainstream values and increases the odds of your continued electoral failure.

[JoeFromtheBronx]

Talking to people is not child abuse.

That doesn't work if the talking is problematic. Parents sometimes are emotionally abusive. This can be done by merely talking.

Therapists can also use talk therapy in abusive ways. Consider a scenario where a child was a victim of sexual abuse by an uncle.

The therapist convinces the five-year-old that the child is bad for telling the authorities and really hurt the uncle. The child should be really ashamed, including for some things s/he did to "ask" for it.

I'm using an obvious case for effect, but therapists sometimes are abusive in providing talk therapy to their patients. I would argue that includes therapists who shame teens for having gay feelings or presumptively say being gay is unnatural.

And, yes, conversion therapy for minors can similarly be problematic, talk therapy or not.

[Rossami]

Not all bad talk is child abuse. That is a very specific term with legal implications. Using words precisely is important everywhere - more so on a law blog. The talk-therapy at issue in this case was clearly not child abuse.

I suppose it is theoretically possible to construct some combination of mere talking that reaches the legal definition of child abuse but it would have to be considerably more extreme than your examples.

[JoeFromtheBronx]

Obamacare litigation

SCOTUS addressed it by its appropriate name -- the name of the actual federal law. You might think the title is inaccurate, but that doesn't change that it is the name of the legislation.

"Obama" didn't craft the law. His Administration was open to a narrower piece of legislation. The House and Senate disagreed, with the Senate ultimately leading the way.

"Medicare" is used. Not some neologism involving the president who signed it into law. "Obamacare" makes it a partisan political thing tied to a certain person and party.

One party was involved in various major pieces of legislation, but we still use the name of the legislation. We don't use some term that ties it to the president who signed it into law, especially when that person did not have the leading role (contra something like the "Truman Doctrine") in crafting it.

Democrats eventually adopted the common usage, but that doesn't change that it is misleading and problematic.

[Bob from Ohio]

Such whining.

[Fort Worth Lawyer]

Blackman is my favorite VC poster by far. But I cannot resist the temptation to correct his post title. Shouldn't it be "When Courts of Appeals......."?
Happy Holidays.

[JoeFromtheBronx]

Yes. There is an amusement level in reading his material.

[Rossami]

More likely, it should be "When a Court of Appeals ..." since the event triggering the post was a specific case decided by the 6th Circuit. If so, that runs into the convention that indefinite articles are often considered optional in headlines. (Definite articles, too, but perhaps slightly less often so.)

But yes, by my theory of the headline, he was inconsistent to omit the indefinite article for the Court of Appeals but include the definite article for SCOTUS. Not worth getting our panties in a twist over.