SCOTUS UPDATE - 11/13/2023


"Certainty is an illusion ..."
Honoured Citizen
Hello Gavelheads! We've reached another hearing interregnum on the Supreme Court, with the November sitting concluded and the December sitting kicking off in two weeks on November 27 (as we've discussed before, the calendar is relative when it comes to the Supreme Court!). Of course that doesn't mean that the Court is standing still doing nothing in the interim ... well, this week at least. They'll probably take next week off for Thanksgiving, but I'm certain that they will be diligently reviewing their upcoming cases and working on the first opinions of the term rather than, say, taking money from donors to unethically take vacations and stuff. They would never do something like that! Anyway, onto the news!

(1) I still owe you faithful readers two argument summaries from this past sitting - the last argued case of the sitting (involving a Veteran's educational benefits program) and the second of the First Amendment cases argued on the second day of the term. My goal is to get them written up this week, but certainly I will have them written up before the next arguments happen on the 27th.

(2) The Supremes granted just one case certiorari on today's weekly orders list, a case involving the use of expert witnesses testifying to the methods used by drug smugglers in border crossings. The Federal Rules of Evidence prevent experts from testifying as to whether a particular defendant had the necessary mental state to commit a crime or assert a defense, but the Ninth Circuit said that the preclusion only prevents the expert from specifically stating that the defendant knew they were committing a crime, allowing for some evidence along the lines of mental state to be offered. We'll see how the arguments shape up in that one once it gets on the argument calendar, probably for the end of this term.

(3) One of the cases denied cert today was a cruel and unusual punishment claim filed by an inmate involving solitary confinement and denial of exercise privileges for a span of 3 years in the mid-2010's. The denial of cert resulted in a relatively rare dissent from the denial (scroll to the bottom of the orders list for the dissent if you want to read it), penned by Justice Jackson and joined by Justices Sotomayor and Kagan. The magic rule in the Supreme Court is that you need 4 Justices to agree to hear a case, so this one was denied by a 6-3 vote. The interesting thing to me about this was not necessarily the argument made by Justice Jackson but rather the reason this cert appeal was likely denied. The rule for how this should be decided actually seems pretty clear, and Justice Jackson lays it out pretty clearly in her dissent. The Seventh Circuit seems not have followed the rule as they should have - a case that seems to be pretty clear legal error. Open and shut then, right? They should accept the case and overturn the lower court decision to correct the error. The fact that they didn't must just be because the Republican-leaning Justices hate prisoners!

Well, ok ... it's actually much more complicated than that. There is actually a fairly well-worn maxim within the Supreme Court that it is not a court of error correction. That's what Circuit Courts of Appeals do. And if the Circuit Courts of Appeals make errors, the Supreme Court has historically has said that that is not reason enough to grant certiorari. The Court exists to decide difficult legal questions and to make sure that the Circuits are not articulating different rules between them - but the simple misapplication of a particular rule is usually not enough to trigger a cert grant. Personally, I strongly dislike this approach - if it is clear a lower circuit court has erred, I think the Supreme Court should 100% grant cert and fix the error. It isn't like they are overloaded with cases, and if the error is as clear as it appears to be here, oral argument wouldn't even be necessary in most cases. Summary reversal is a tool that the Court could use in those situations ... but it is very unlikely to do that.

Justice Scalia once went so far as to say that the interest in finality of judgments was more important than getting individual cases right - a view that I completely loathe and view as anathema to a court that dispenses justice. Nonetheless, it is not just conservative Justices that have expressed this view - you can find it all the way back in the earliest courts that used certiorari as a tool, with Chief Justice Taft expressing the same view, and Justices Breyer and Ginsburg have both written similar things in opinions. In other words, this is a view that crosses ideological and historical divides on the Court and gets down at a fundamental level to how the Justices view their role. If I magically got on the Court some day, this is something I would fight to change. Unfortunately, I suspect in this case it doomed the effort to take this case, because Justice Jackson didn't have any new law to make by accepting this one - she just would have corrected an error in the application of the appropriate law. Unless that error spreads to another circuit and we get a clear circuit split, or unless the 7th Circuit repeatedly keeps making the same error, don't expect the Supremes to address this issue at all.

Until next time, Gavelheads, I wish you great legal learning!