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Wednesday, November 09, 2011

Seven-Sky's Influence on the Court

I'd like to pick up on Steve's post from earlier today about the influence of Seven-Sky, the ACA case, on the Supreme Court.  Part of the first-round of reaction to the DC Circuit's opinion seems to be that the opinion makes it less likely that the Court will strike the law down.   At least one statement to this effect seems to be phrased as a matter of prediction rather than persuasion -- i.e., it's not that the appellate court's opinion is necessarily likely to persuade any particular justice as much as the opinion functions as a clue into the thinking of what that article calls "conservatives legal minds" [sic]. 

But the possibility that a lower court opinion could be especially persuasive to the Court got me thinking.  Are there examples where it's been established that a particular lower court opinion was so persuasive that it carried the day at the Court?  I know sometimes justices will say something like "for the reasons expressed by the lower court I would affirm that court's judgment."  But are there examples of Supreme Court opinions analyzing cases in ways that essentially track the opinions of the lower court in that case?  Does it happen more with specialized courts -- e.g., Federal Circuit opinions?  Or with particularly influential or well thought-of lower court judges?  Maybe people have studied this effect; if so, I'd love to hear about the findings.

Posted by Bill Araiza on November 9, 2011 at 07:54 AM | Permalink


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How about Jones v. Harris Associates, where the Supreme Court basically adopted the Second Circuit's Gartenberg standard?

Posted by: Roger | Nov 14, 2011 9:18:16 PM

According to Noah Feldman in "Scorpions," the Court adopted Learned Hand's opinion applying the clear and present danger test in Dennis v. United States (over the concurrences/dissents of Frankfurter, Jackson, Black and Douglas). As Feldman puts it, "The four very average justices who signed the opinion [Vinson, Burton, Minton and Reed] deemed it the best course to rely on the famous appellate judge."

Posted by: Jeremy Horowitz | Nov 9, 2011 2:55:07 PM

On the theory that no judge likes to get reversed, isn't it more likely that the arrow is pointed the other way? In other words, Judges Silberman and Edwards know that the Court is now virtually certain to grant review in the existing cases (and we know they know, because Judge Silberman's opinion actually states that fact), so they are even more keenly aware of the need to do their best to analyze the case in the way they think a majority of the Court will analyze it (taking account of the text and the precedent etc.).

Posted by: Joe Miller | Nov 9, 2011 8:46:56 AM

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