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Tuesday, June 05, 2018

SCOTUS Term: (When) Should Lower Courts Try to Predict Supreme Court Rulings?

Towards the end of his post this morning, Richard brings up an interesting  issue that arose during arguments in Hughes v. United States, which is the extent to which lower courts ought to follow "the 'predictive model' of precedent, whereby lower courts strive to predict the decisions of their judicial superiors." As Richard notes, Chief Justice Roberts forcefully asserted this model, which "was eyebrow-raising at the time" given the Supreme Court's own statements. And I think enlightened opinion has generally suggested that there is something problematic about substituting "what the Supreme Court will do" for lower courts' duty to apply the law as it stands.

Still, it seems to me that we need to think more carefully about what the "predictive model" actually is and whether we might be able to refine it into something that makes sense. I can think of at least four different propositions that the model might entail:

  1. Lower courts should be free to engage in "anticipatory overruling" of Supreme Court decisions. The Court itself has been most forceful about rejecting this point, saying that: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." And even if that precedent rests on "increasingly wobbly, motheaten foundations ... it is this Court's prerogative alone to overrule one of its precedents."
  2. Lower courts should apply Supreme Court precedent differently just because the Court's personnel has changed. For instance, the day that Justice Alito assumed Justice O'Connor's seat, one could look at a law professor's list of 5-4 decisions that seemed likely to be overturned; even if one does not accept (1) above, one could imagine lower-court judges approaching decisions in those areas (abortion, campaign finance, affirmative action, the Establishment Clause, and the Fourteenth Amendment enforcement power) with a new thumb on the scale.
  3. Lower courts should apply Supreme Court precedent differently (or not at all) in cases where no Supreme Court review is possible. This may frequently be more hypothetical than real, but is a frequent ingredient in debates about limiting federal jurisdiction. A frequent assumption of those who wanted to restrict the Supreme Court's review over certain issues or courts is that freed of Supreme Court review, the tribunal would be freed of the obligation to follow Supreme Court precedent as well. There is at least some historical support for this view.
  4. Lower courts should try to follow the general drift of an area of law, not only the specific holdings and dicta of Supreme Court opinions. For instance, in qualified immunity, or AEDPA habeas review, or arbitration, the Court takes a string of cases, generally to reverse the lower courts, and generally in the same direction. Sometimes these reversals are summary, and sometimes the Court remands other cases on the same topic for review in light of the most recent reversal. Perhaps at some point lower courts are supposed to get the message.

Referring to the "predictive model" generally suggests that these four things should all travel together. But that is not so clear to me. For instance, the Court's explicit rejection of (1) does not necessarily entail a rejection of (2)-(4). For my own part, I strongly favor (1), generally favor (3), and am more open to (4) than to (2).

Another possible refinement is to imagine a "predictive model" that might sit alongside another more fundamental theory of lower court decision. For instance, a predictivist might plausibly argue that a lower court judge really has two legal duties. First, to get the law right as a matter of first principles (meaning to rule in the way that would be correct absent any precedents that misstate the law); and second, to avoid wasting the litigants' time and money with decisions that will likely be reversed. Under this theory, prediction might be a constraint on a theory of independent judgment, rather than a source of law itself. It might also suggest that in cases where predictions are the most unclear, judges should focus on the underlying principles of law rather than trying to read tea leaves. On that view, Hughes may not have been a good case to use the predictive model, but that doesn't necessarily mean there's no good case for it.

[Cross-posted, with modifications, from the Volokh Conspiracy.]

Posted by Will Baude on June 5, 2018 at 03:57 PM in 2018 End of Term | Permalink


Just another illustration( the independence of judges and the judiciary ) here I quote from the constitution of Turkey :

CHAPTER THREE. Judicial Power

I. General provisions

A. Independence of the courts

Judges shall be independent in the discharge of their duties; they shall give judgment in accordance with the Constitution, laws, and their personal conviction conforming with the law.
No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions.

No questions shall be asked, debates held, or statements made in the Legislative Assembly relating to the exercise of judicial power concerning a case under trial.

Legislative and executive organs and the administration shall comply with court decisions; these organs and the administration shall neither alter them in any respect, nor delay their execution .


Posted by: El roam | Jun 6, 2018 4:57:28 PM

It's true that in theory there could be some version of the predictive model that wouldn't embarrass itself in the way it would have in Hughes. But what this post completely fails to do is even hint at why your preferred version of the predictive model, or any other acceptable version of the predictive model, wouldn't get Hughes wrong in that way.

So let's take your preferences. You like anticipatory overruling, which is fine (and not actually forbidden by the Court's precedents, whose statements criticizing anticipatory overruling are, by necessity, only dicta). Now, what better, seemingly more accurate way to anticipate that the Court will overrule one of its precedents is there than to note that enough members of a majority in a case to overrule that case have said that case was wrongly decided? Almendarez-Torres was 5-4, with Thomas in the majority; Thomas has since said it's wrong and should be overruled in multiple opinions. In City of Arlington the Court voted 5-4 to apply Chevron in a maximalist way, with Thomas in the majority; Thomas has subsequently said that Chevron is probably unconstitutional. Seems like those precedents are likely to be overruled, and that we have much more confidence of that than we will anticipating that a precedent will be overruled because it "appears to rest on reasons rejected in some other line of decisions." The Court can reject a statutory-interpretive methodology that produced a result in a particular case, and yet have no interest at all in overruling that case, for reasons of stare decisis; that happens all the time. When critical members of a majority, however, say that a precedent should be overruled, even given stare decisis, that's a really strong reason to think that precedent will be overruled. So if you like anticipatory overruling, you should like predictive nose-counting, since predictive nose-counting is the most accurate way to do anticipatory overruling.

Now, what I've just said is actually wrong; defections from a majority aren't a sufficient reason, and sometimes aren't even a strong reason, to think a precedent will be overruled, because the dissenters in that case may have left the Court (or subsequently chosen to adhere to it for reasons of stare decisis). In Almendarez-Torres, three of the four dissenters are no longer on the Court, so you can't just add Thomas to the four dissenters and suppose you know what will happen next. But this is where we run into a familiar side constraint on prediction, namely your discomfort with your "(2)," the consideration of changes in the Court's composition. Virtually all predictivists will disclaim reliance on changes in the Court's composition because they can't help but find that unseemly. But in refusing to consider changes in the Court's composition, they box themselves into mistakes like the one in Hughes, i.e., arguing, as the Chief Justice, the SG, and Judge Kavanaugh all did, that because Justice Sotomayor and the four Freeman dissenters would agree on the outcome of Hughes, lower courts should predict that that outcome would obtain at the Court in Hughes, even though one of the dissenters has been replaced.

At this point, I think you could say two things. First, you could say that you only like predictive nose-counting for purposes of anticipatory overruling, not for purposes of working out what to do with a fragmented decision, or any other problem of precedent for that matter (e.g., a majority opinion holds X, but a concurring opinion and a dissent, joined in total by five Justices, agrees on not-inconsistent proposition Y, so Y binds lower courts). But that would be really strange; why would it be okay to make predictions only for purposes of anticipating that precedent will be overruled, not to figure out what existing precedent is?

Second, you could disclaim predictive nose-counting altogether and say that you only think that anticipatory overruling, or other modalities of prediction, like your (4), can be done on the basis of majority-supported doctrinal change that undermine a precedent or indicate that a case should be decided in a certain way. Now, that would be coherent enough, but note that that actually isn't prediction at all. When a lower court says that a precedent should be overruled because of a combination of doctrinal developments and its application of the law of stare decisis, it isn't predicting what the Court would do; it's just applying the law of stare decisis and the law on the merits of the subject, as it would apply any other doctrine.

For example, if a lower-court judge were invited to anticipatorily overrule Chevron, in a world where that were permissible, and applied the law of stare decisis, he would find that Chevron was resoundingly reaffirmed and expanded just a few years ago, that there haven't been notable doctrinal developments since, that there's a great deal of reliance on Chevron, and decline the invitation. As a predictive matter, he'd probably be wrong in the long run. But we only know that from a three-Justice dissent, a solo concurring opinion, stray remarks by a new member of the Court that don't even amount to dicta but are highly suggestive, and things he wrote as a lower-court judge -- in short, predictive nose-counting and tea-leaf reading. A lower-court judge could anticipatorily overrule Chevron by recourse to nose-counting and tea-leaf reading, and decide other non-overruling questions in the same way. But so long as he refused to consider changes in the Court's composition, as predictivists do, he would make mistakes of the kind predictivists made in Hughes.

Posted by: Asher Steinberg | Jun 6, 2018 12:57:08 PM

I don’t understand what 4 means. As a judge, I would be expected not only to apply specific precedent, but the general “drift” of case law? How? If I have a concrete case before me where I believe precedent requires me to reverse, I should just defer to the general “drift” in a case I think is close? How do I determine this drift and its contours? Take the AEDPA cases. Is the drift a general trend about all AEDPA cases, death-penalty AEDPA cases, the Ninth Circuit, or something else? Why would I think it’s a drift in any event, given that the Court has taken and reversed only a tiny, tiny, tiny percentage of all AEDPA cases? How many circuit splits will develop over whether a drift exists and its contours? And how do I know when a drift ends? And when there is invariably an over correction by some lower courts, would the Supreme Court be specially obligated to re-correct that trend? For example, the Fifth Circuit already reflexively rejects nearly every AEDPA appeal. Telling them there is a "drift" in favor of rejecting AEDPA cases would be like waiving red meat in front of them. And would that re-correction itself constitute a drift in the opposite direction, which would ultimately necessitate another correction?

More generally, 1, 2, and 4 would interject an enormous amount of indeterminacy in the law. That’s good for nobody.

Posted by: anon | Jun 6, 2018 11:08:08 AM

Just further clarification :
As written , a judge must apply a precedent , in good faith , if there is a substantial similarity with the current case he handles . But :
If incorrectly applied or not , then :

That is why there is an appeal court . And that is why , he ( the judge ) must write down clear and comprehensive reasoning . So , the transparency made by them both ( appealing , and reasoning ) would form the basis for maximum or optimal review of the decision . But as mentioned , when actually prevailing , it is up to the judge , not no one else .


Posted by: El roam | Jun 6, 2018 5:56:39 AM

The point Wasserman , is that it is up to the judge . The judge of the lower court . It is up to His own experience and intuition and understanding . He handles the case . He is independent . No one can and should advice him , how similar is the case he handles , with certain precedent . Of course , if in good faith , there is substantial similarity , he needs to apply the precedent .But finally , he runs the show. No one else should !!That is the meaning of being a judge . It is up to you , and not on no one else !!


Posted by: El roam | Jun 6, 2018 5:16:50 AM

How much guidance should courts draw from the "Erie guesses" that they do on state law? How similar or different should the approaches be?

Posted by: Howard Wasserman | Jun 5, 2018 11:03:17 PM

Important post , raising a common apparent issue and difficulty, yet , which are not paradoxically , an issue at all . The most important principle is the independence of a judge and judiciary. That is to say , that a judge , is a lonely rider , lonely knight in his job . He can't and must not rely on no one , but himself. Even if more than one judge sit , every judge must consolidate his opinion independently of others or whoever . Here I quote for example , article 2 of the " Basic Law: The Judiciary " of the Israeli state ( common law ) here :

2. A person vested with judicial power shall not, in judicial matters, be subject to any authority but that of the Law.

End of quotation :

So , a judge can't be subjected to nothing , to no one , but the law . Otherwise , beyond the main principle in a system or regime governed by the rule of law , a lower court , could consult , in advance with the supreme court , why to waste time and money of the tax payer ?? But a judge can't do it !!

If there is a precedent , it should guide him ( guide the judge ) but , guiding , that is not to say binding him totally . It should , only when there is , total or substantial similarity . But every case , constitute typically , a unique legal and factual configuration. So , yet , the issue would be then :

Why there is an appeal court of course ?? Well , there is , simply because , you couldn’t hold and maintain one court and that's it . Many decisions are not appealable necessarily by nature so . Lower courts , are doing typically , for example , the " heavy lifting " elaborating many peripheral issues ( like expert testimonies ) and the appeal court , deals with a narrow question of law typically , or facts sometimes.

That is how , narrower and narrower issues , are accumulated or eliminated , all the way upstream to the supreme court . There , the observation , is more experienced and professional of course. So , their time , can't be wasted on peripheral or basic issues .

So a judge , should not typically predict at first place , nothing a head , but concentrate , independently in his work .


Posted by: El roam | Jun 5, 2018 5:49:44 PM

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