More Supreme Court Signals

A couple weeks ago, I discussed “Supreme Court Signals.” The main vehicles for signaling that I identified were certiorari denials and Justices’ statements during oral argument. This week, Justices sent what look like two more signals, this time in statements respecting denial.

In my earlier post, I defined signaling as “official actions that don’t establish conventional precedent or resolve ultimate merits issues, but nonetheless suggest, perhaps deliberately, some aspect of how lower courts should decide cases.” I also speculated that new digital technologies have recently made signaling a viable mechanism for the Supreme Court to guide lower courts. And I offered a few possible criteria for when signaling might be appropriate, given its pros and cons.

This week, the Court’s orders list contains what look like two new signals contained in statements respecting the denial of certiorari. (Many thanks—for the second time this month—to Professor Ronald Mann for pointing me toward interesting items from the order’s list.)

The first example is Justice Sotomayor’s statement respecting denial, joined by Justice Breyer, in Redd v. Chappell.

The problem in Redd was that a criminal defendant has waited over four years to have counsel appointed for his state habeas proceeding—even though such counsel is guaranteed as a matter of state law. Justice Sotomayor explains that this situation places the defendant “in limbo: To raise any claims challenging his conviction and sentence in state habeas proceedings, he must either waive his right to counsel or continue to wait for counsel to be finally appointed.”

Still, Justice Sotomayor supported the denial because it was “not clear that petitioner has been denied all access to the courts.” After effectively offering the defendant a few suggestions about how to proceed, Justice Sotomayor noted “that the State represents that state habeas counsel will be appointed for petitioner ‘[i]n due course’—by which I hope it means, soon.” The emphasis on that last word is in the original.

The point of Justice Sotomayor's statement is pretty clear. But will it work? With only two Justices joining and no obvious means of following up on the case, it's not entirely clear that California will get the message and react.

The second example, Justice Kagan’s three-Justice statement respecting denial in Joseph v. United States, is a clearer signal.

The basic issue in Joseph has to do with a commonplace rule: appellants must raise all their arguments in their opening brief, or else those arguments are forfeit. But while this rule is commonplace, the overwhelming majority of circuits recognize exceptions, such as when new legal developments arise shortly after the filing of an opening brief.

Just such an event occurred in Joseph: after filing an opening brief, a new Supreme Court decision (written by Justice Kagan) reversed Eleventh Circuit precedent. The defendant accordingly requested permission to file a supplemental brief to raise arguments on plain-error review. The government, which hadn’t yet filed its bottom-side brief, didn’t object. Yet the Eleventh Circuit wouldn’t entertain the supplemental filing or argument.

Justice Kagan spent about a page explaining why the Eleventh Circuit’s outlier approach is unfair, contrary to principles of retroactivity, and harmful to judicial economy. All of that seems pretty persuasive—and a pretty persuasive reason to grant certiorari and eliminate the Eleventh Circuit’s outlier approach.

But then Justice Kagan noted that the Eleventh Circuit is actually inconsistent in its rigidity. This led to the statement’s concluding sentences:

We do not often review the circuit courts’ procedural rules. And we usually allow the courts of appeals to clean up intra-circuit divisions on their own, in part because their doing so may eliminate any conflict with other courts of appeals. For those combined reasons, I favor deferring, for now, to the Eleventh Circuit, in the hope that it will reconsider whether its current practice amounts to a “reasoned exercise[ ]” of its authority.

The “for now” phrase in there wasn’t italicized, but it might as well have been. Not only did Justices Ginsburg and Breyer join Justice Kagan’s statement, but Justices Kennedy and Sotomayor actually voted to grant certiorari right then and there. The signal here is relatively clear: the Eleventh Circuit should sort out its business and fall in line with the other courts of appeals—or else the Supreme Court will have to take action.

One interesting difference between Redd and Joseph is that only in Redd would the petitioner for certiorari directly benefit from the Court’s signal (by getting counsel more promptly appointed). The petitioner in Joseph, by contrast, triggered a signal that put the Eleventh Circuit on notice that it has to act differently in future cases involving other defendants. Perhaps the Joseph petitioner will indirectly benefit from Justice Kagan's statement, but that remains unclear and of secondary import. The real purpose of Justice Kagan’s statement respecting denial wasn’t to do justice in the individual case, but rather to achieve the uniformity benefits of cert without the hassle of putting the Court through full dress briefing and argument. This is the Court’s managerial role on full display.

But there’s also a troubling note of uncertainty about these signals. For if five Justices were really so certain that there was an error below, why not just write a summary reversal instead of a statement respecting denial? Maybe the reason is that some or even most Justices didn’t necessarily agree with the concerns that Justices Sotomayor and Kagan so forcefully expressed. So while individual Justices might find it attractive to try to send signals, their colleagues may think differently. It also seems possible that some Justices didn't want to set a precedent on the Court’s willingness to issue merits decisions in cases like Redd and Joseph. As Justice Kagan noted, “We do not often review the circuit courts’ procedural rules.” Precisely because a signal is more ambiguously authoritative than a precedential merits decision, it’s also less binding on the Court itself. It’s easier for the Court to ignore, back away from, or even disavow its own past signals. This makes signals weaker medicine, but also safer and, perhaps, just what the doctor ordered.

The uncertainty associated with signaling can create costs and inefficiencies. It's easy to read too much into things like cert denials or individual Justices' comments at oral argument (discussed in my earlier post), and the same problem applies to statements respecting denial, including in Joseph and--even more--in Redd. If signals are hard to identify, or to identify as credibly speaking for a majority of the Court, they can become more like noise or cheap talk that's better ignored than relied on. Perhaps these difficulties can be worked out with time. The Court is still new to the managerial opportunities created by digital media and may hone the art of signaling in years to come. At the same time, inferior courts and other observers might get more skilled at telling when signals should and shouldn't be acted on.

Given signaling's unique sources of appeal, it seems safe to say that we're going to see a lot more signals this term and beyond.

The above is cross-posted from Re's Judicata.