During its 2011 October Term, the Supreme Court granted a mere seventy-four merits cases out of the more than 8,000 petitions for certiorari seeking review—or roughly 1%. Assuming this trend continues and all other things being equal, a petitioner is more likely to read about the discovery of life on Mars by the end of the year than to read the words “certiorari granted” next to their case—at least according to a website that bills itself as “the world’s leading prediction market.”
So how does the Supreme Court select the 1%? As I noted yesterday (here), former Justices have described the decision as a matter of “grace” and “feel.” Supreme Court Rule 10 offers slightly more guidance by identifying several “compelling reasons” that enhance a case’s chance of occupying a slot on the Court’s discretionary docket. According to Rule 10, the Justices are more likely to feel compelled to grant certiorari in a case presenting an important question of federal law on which there is a conflict between two or more federal courts of appeals (i.e., a “circuit split”) or between a state court of last resort and a federal appellate court. The Rule also mentions state or federal court decisions that conflict with Supreme Court precedent. Beyond that, the Supreme Court has offered little guidance on how it selects the 1% of cases that occupy its docket each term.
While the high court may prefer to maintain a shroud of secrecy around its case-selection process, intermediate appellate judges have occasionally written opinions that reveal more concrete criteria. Monday marked one such occasion, as two judges on the First Circuit examined the Court’s case-selection criteria in a stirring dissent.
The case, United States v. Pleau, arises from the Governor of Rhode Island’s refusal to turn a state prisoner over to the federal government to face prosecution for capital murder because of the Governor’s stated opposition to the death penalty. Nos. 11-1775, 11-1782 (1st Cir. May 21, 2012) (en banc). The Governor’s refusal prompted the U.S. District Court for the District of Rhode Island to order the state to hand the prisoner over to the federal government, which in turn prompted Pleau’s appeal to the First Circuit. The First Circuit sitting en banc ultimately held that the State of Rhode Island must honor the district court’s writ of habeas corpus by producing Pleau to the federal government.
In a last-ditch effort to avoid having to produce Pleau, the Governor filed a joint application with the Supreme Court seeking to stay the First Circuit's mandate pending the Supreme Court's review of Pleau's yet-to-be filed cert. petition. The First Circuit summarized the matter as follows: "The government has moved to expedite issuance of the mandate; defendant-appellant Pleau and intervenor Governor Chafee have moved for a stay pending certiorari. Although the government has legitimate reasons for its motion, the date for issuance will remain May 29, 2012; but we see no basis for delaying issuance beyond that date." Although the First Circuit refused the Governor's request, the Governor’s motion resulted in a dissenting opinion that sheds light on the characteristics that make a case “certworthy” in the eyes of the Court. You can read my commentary on the dissent in the footnotes below.
TORRUELLA , Circuit Judge, with whom THOMPSON , Circuit Judge, joins, dissenting. I respectfully dissent from the denial of the motion to stay the issuance of the mandate in this case. Federal Rule of Appellate Procedure 41(d)(2)(A) permits this Court to stay a mandate pending the filing of a petition for certiorari if the petition would "present a substantial question" and if there is "good cause for a stay." The inquiry contemplated by this rule "focuses on whether the applicant has a reasonable probability of succeeding on the merits and whether the applicant will suffer irreparable injury." McBride v. CSX Transp., Inc., 611 F.3d 316, 317 (7th Cir. 2010) (internal quotation marks omitted). See also 20A James W. Moore et. al., Moore's Federal Practice, § 341.14 (Matthew Bender 3d ed. 2012). Both of these requirements are clearly satisfied here.
"To demonstrate a reasonable probability of success on the merits, the applicant must show a reasonable probability that four Justices will vote to grant certiorari and a reasonable possibility that five Justices will vote to reverse the judgment of [the Court of Appeals]." McBride, 611 F.3d at 317. Under Supreme Court Rule 10(a), the Court will consider granting certiorari if a court of appeals "has entered a decision in conflict with another United States court of appeals on the same important matter."1 In addition, under Supreme Court Rule 10(c), the Court will consider granting certiorari when a federal Court of Appeals "has decided an important question of federal law that has not been, but should be, settled by [the] Court, or has decided an important federal question in a way that conflicts with relevant decisions of [the] Court." Here, these factors weigh in favor of a grant of certiorari.
There can be no doubt that this case presents an "important question of federal law": the proper balance of power between the states and the federal government in the context of custody over prisoners.2 Questions of federalism and the interaction between federal government and state government authority are some of the most important legal issues that the Supreme Court must resolve. The potential impact of this case on the rights of states is significant enough that the National Governors Association and the Council of State Governments, organizations representing the governors and elected and appointed officials of all 50 states, participated in this case as amici curiae.3 This case also has important implications for the rights of criminal defendants, as evidenced by the appearance as amici curiae of various organizations representing criminal defense lawyers.
Resolution of this question of federal law turns in large part on the proper interpretation of a Supreme Court case, United States v. Mauro, 436 U.S. 340, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978). A dispute regarding the proper interpretation of a Supreme Court case is clearly one that is best settled by the Supreme Court. In addition, as explained by the dissent from the en banc decision, it can be argued that the en banc decision conflicts with Mauro, a relevant decision of the Supreme Court. See United States v. Pleau, No. 11-1775, 2012 U.S. App. LEXIS 9271, at *13 (1st Cir. May 7, 2012) (Torruella, J., dissenting). Moreover, there is a split of authority among the circuits regarding the proper reading of Mauro. Compare United States v. Trafny, 311 Fed. Appx. 92, 95-96 (10th Cir. 2009), United States v. Graham, 622 F.2d 57, 59-60 (3d Cir. 1980), cert. denied, 449 U.S. 904, 101 S. Ct. 278, 66 L. Ed. 2d 135 (1980), and United States v. Bryant, 612 F.2d 799, 802 (4th Cir. 1979), with United States v. Scheer, 729 F.2d 164, 170 (2d Cir. 1984).4
Furthermore, if the Court does grant certiorari, there is a reasonable possibility that five Justices will vote to overturn the en banc majority's decision.5 Reasonable jurists can disagree regarding the proper interpretation of Mauro, as illustrated both by the debate within this Court and by the split in authority between the Circuits. It is by no means certain that the Supreme Court would agree with the en banc majority's decision.
There is also good cause to delay the issuance of the mandate. The majority argues that the mandate must be issued according to the normal schedule because the federal prosecution of Pleau must be allowed to resume as soon as possible. However, it is difficult to see what will be lost by allowing the Supreme Court time to decide whether or not to grant certiorari in this case. On the other hand, Rhode Island's interests could be irreparably harmed by Pleau's transfer to federal custody.
The State of Rhode Island has a public policy against the death penalty. In furtherance of this public policy, the State has an interest in preventing its citizens from being exposed to a prosecution that might result in the death penalty. Rhode Island also has an interest in upholding its sovereign right to refuse a request for a prisoner transfer, a right guaranteed by the express language of the Interstate Agreement on Detainers. Both of these interests could be irreparably harmed if Pleau is transferred before the Supreme Court has an opportunity to decide whether or not to grant certiorari. The transfer of Pleau to federal custody could moot this case entirely. In addition, as the en banc majority opinion recognized, "the governor could hardly obtain meaningful relief following a federal conviction of Pleau." Pleau, 2012 U.S. App. LEXIS 9271, at *6.
Given the importance of the issues presented in this case and the risk of irreparable harm to Rhode Island's interests, I see no reason for the majority's haste to issue the mandate. The Supreme Court may yet decide to uphold the en banc majority's opinion, but it may also decide to reinstate the original panel's decision. The most prudent course of action for this Court seems to be to leave the status quo in place while the Supreme Court decides what it wants to do. Therefore, I respectfully dissent.
FN1. Cases involving circuit splits make up about 60-75% of the Supreme Court's docket each term.
FN2. All circuit splits are not created equal. The Supreme Court will only review inter-circuit splits that pose "important" questions of federal law. There are a variety of ways to demonstrate a particular issue's importance. Here, the dissenters do a great job conveying the magnitude of the question presented.
FN3. Another sign of a case's importance is the presence of briefs submitted by interested third parties (referred to as "amicus briefs"). The participation of amicus curiae ("friends of the court") in a case demonstrates to the Court that the case's resolution will have a far-reaching effect beyond the parties to the dispute.
FN4. A circuit split is considered "stale" when the conflict arose decades ago, yet was never resolved by the Supreme Court. Stale splits are often perceived as less certworthy. On the other hand, skillful advocates have, in the past, successfully framed older circuit splits as being more, rather than less, certworthy on the basis that they have had enough time to "percolate."
FN5. Each term the Supreme Court reverses around 70% of the cases it decides. Thus, a case is more likely to attract the Court's attention if it presents a question that a majority of the Justices desire to reverse.
*UPDATE: this afternoon the Supreme Court denied Pleau's request for a stay.