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Friday, January 16, 2015

SCOTUS Repeaters

Few cases ever reach the Supreme Court, but some get there twice. Recent examples include Bond v. United States (decided 2011 & 2014) and Zivotofsky v. Clinton/Kerry (2012 & pending). The Court may soon add another example: Horne v. Department of Agriculture, decided the first go-round in 2012.

What to make of these “SCOTUS repeaters”? It’s hard to draw strong conclusions from this unusual if regular phenomenon, but a few interesting possibilities present themselves.

First, maybe it's just a coincidence. Some cases may just happen to raise two certworthy issues at two different points in time. But the federal circuit courts alone decide (according to one dated statistic) around 35,000 cases on the merits annually; and, even among cases that generate cert petitions, the grant rate hovers at around 1%. So it’s unlikely that too many sequential grants in the same case would result from a random distribution of certworthy issues nationwide.

Second, some cases may involve such complex or extraordinary facts that they keep throwing off new certworthy issues. One example of this may be the Court's two interventions (in 2006 and 2011) in the long-running bankruptcy dispute pertaining to the estates of Anna Nicole Smith and her wealthy husband. (The court explained that the litigation called to mind the plot of Dickens's Bleak House.) But some SCOTUS repeaters don't seem to involve such remarkable facts.

Third, maybe it’s very good lawyering. If you have a lawyer with the wherewithal to file a cert petition, then you are already fortunate. If you have an attorney (or pro se abilities) that can generate a cert grant, then you are getting way above-average representation. And miracle-workers, unlike lightning, can strike twice. Yet members of the Supreme Court bar can only do so much. Even the greatest SCOTUS advocate needs some pretty promising raw material to work with.

Fourth, maybe the Court feels responsible. Will Baude discusses this possibility in connection with the Court’s “shadow” or non-merits docket.  In Williams v. Johnson, for instance, the Court summarily retracted the erroneous verbiage in its prior decision in the case. Apparently, the Court engaged in this error-correction because the Court itself had made the error. Will's piece also raises the possibility of summary reversals and GVRs that seem responsive to lower-court disobedience. But these aren’t the kind of things going on in merits cases like Bond and Zivotofsky.

Fifth, maybe the Court gets invested, so that the first grant helps with the second. As the Justices review the swarms of cert petitions put before them, maybe petitions from previously decided cases stand out in part because of their familiarity. The Justices and clerks (who study recent opinions) may remember the facts and so take more quickly to a new pitch for cert. Still, the cert process is sufficiently bureaucratized that there has to be a credibly certworthy issue for a repeat petition to get off the ground.

Finally, maybe it’s the second grant that the Court always wanted. A case comes in with a great underlying claim that the Court really wants to hear for one reason or another. But if the decision below ruled on a threshold ground, then the Court might have to clear out that potentially non-certworthy holding before subsequently granting cert on a second pass. Notably, in all three examples that started this post—Bond, Zivotofsky, and Horne—the Court’s first bite at the case involved jurisdictional issues.

Those are my top nominations—are there any that seem better? Also, I'd be curious to hear more examples of SCOTUS repeaters. 

UPDATE: It's not the biggest news from today's order's list, but Horne has now officially joined the ranks of SCOTUS repeaters.

Posted by Richard M. Re on January 16, 2015 at 02:10 AM | Permalink


Arizona v. Gant, 556 U.S. 332 (2009) is a repeater of sorts, although its first go-round did not include a full opinion. It probably fits your sixth suggestion. The Court wanted to reach an issue on the scope of the "Belton" rule for searches incident to arrest, but it took four tries: Florida v. Thomas, 532 U.S. 774 (2001) (dismissing for lack of jurisdiction); Arizona v. Gant, 540 U.S. 963 (2003) (remanding in light of intervening state court decision); Thornton v. United States, 541 U.S. 615 (2004) (getting part of the way there); Arizona v. Gant, supra (finally overruling Belton).

Posted by: milbarge | Jan 22, 2015 4:51:59 PM

Also U.S. v. MacDonald, 435 U.S. 850 (1978) and 456 U.S. 1 (1982). This case arguably fits into several of the theories. It may also reflect the fact that this was a notorious case: the Green Beret doctor convicted of murdering his wife and children and blaming hippie intruders.

Posted by: Bob Power | Jan 21, 2015 11:34:57 AM

The Oneida Indian case went to the Court three times.

Posted by: anon | Jan 19, 2015 8:16:56 PM

The two-time case where both opinions are most meaningful is probably SEC v. Chenery, 318 U.S. 80 (1943) (agency adjudications to be reviewed on the basis of agency's stated reasoning), and 332 U.S. 194 (1947) (agency may make policy through case-by-case adjudication).

Posted by: Mark Regan | Jan 17, 2015 5:39:57 PM

Following on Andrew's example: Justice Thomas concurred only in the judgment, in part to insist that Brentwood I was wrong.

Posted by: Howard Wasserman | Jan 17, 2015 12:42:06 PM

Another interesting repeater is Brentwood Academy:

(1) 2001: 5-4 decision that the regulatory agency for school athletics in Tennessee is a state actor.

(2) 2007: unanimous decision that agency's anti-recruiting rules don't violate 1st Amendment

In this case, I think the Court felt responsibility for the fact that its intervention in the first case in combination with some wacky analysis from the lower court produced the wrong result.

Posted by: Andrew Siegel | Jan 17, 2015 10:00:23 AM

A repeater was granted today though it wasn't quite what most people were paying attention to (Horne v. Dept. of Agriculture).

Posted by: Joe | Jan 16, 2015 5:58:41 PM

The Scottsboro cases went to the Supreme Court twice, once as Powell v. Alabama, and again as Patterson v. Alabama.

Posted by: Steven Lubet | Jan 16, 2015 3:57:51 PM

CSX v. Alabama, 131 S. Ct. 1101 (2010)
Alabama v. CSX (13-553) (oral arguments held Dec. 2014)

Posted by: andy | Jan 16, 2015 3:17:21 PM

The famous (for civ pro nerds) Mottley case went twice: once for the Court to reject original federal jurisdiction and then later, on appellate jurisdiction, on the merits. Both decisions went against the Mottleys.

Posted by: Scott Dodson | Jan 16, 2015 2:31:32 PM

Or to avoid hard substantive questions, courts of appeals seize on questionable procedural rules that avoid deciding the merits. See Bond, Zivotofsky, and Horne.

Posted by: A | Jan 16, 2015 12:40:38 PM

Didn't NAACP v. Alabama go to the Court, in some shape or form, four times all by itself?

Posted by: Blondie | Jan 16, 2015 12:20:21 PM

I think all six explanations are useful, although the last is probably the most powerful.

One more repeater:

Brewer v. Williams, 430 U.S. 387 (1977) (the "Christian burial" case on interviewing witnesses without a lawyer, holding that the interview, which led to the discovery of the victim's body, violated the 6th Amendment).

Nix v. Williams, 467 U.S. 431 (1984) (following retrial, holds that the body was admissible despite the 6th Amendment violation because it would have been inevitably discovered).

Posted by: Orin Kerr | Jan 16, 2015 10:27:43 AM

Adarand was granted cert three times: Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (2000); Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001)

Bush v Gore also arguably counts. Bush v. Palm Beach County Canvassing Bd.
531 U.S. 70 (2000); Bush v. Gore, 531 U.S. 1046 (2000).

In both case, I think Court was motivated by its perception that a recalcitrant lower court was not properly following instructions

Posted by: Josh Block | Jan 16, 2015 10:06:34 AM

Halliburton Co. v Erica John Fund reached the Supreme Court in 2011 and 2014. Remarkably, both times the issue was class certification, and both times the Supreme Court remanded for further consideration. this case was filed in 2002, and will celebrate its bar mitzvah before class cert will be decided even by a District Court. It may well be of voting age before the merits are resolved.

Posted by: arthur | Jan 16, 2015 9:29:25 AM

I like a combination of the complexity and threshold possibilities, which sort of run together. Also, consider the possibility that this happens more frequently in habeas cases. Although I haven't looked at this, it feels as if many well-known habeas petitioners have come to the Court multiple times.

Posted by: Howard Wasserman | Jan 16, 2015 7:33:29 AM

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