Circuit Splits

Occupy the Docket: How the Supreme Court Selects the 1%

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[2] (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.

Issues in Constitutional Litigation: A Context and Practice Casebook [Book Review - Part 2 of 2]

Yesterday I reviewed Professor Sarah Ricks and Professor Evelyn Tenenbaum's new casebook entitled Current Issues in Constitutional Litigation: A Context and Practice Casebook (Carolina Academic Press 2011). In case you missed it yesterday, you can find my review of the professors' new casebook here.

Today I wanted to encourage readers to check out the following two sample chapters, which you can download for free on SSRN:

• Chapter Five - 42 U.S.C. § 1983 Action Under Color of Law. To give you a better idea of the layout of each chapter, here is a screenshot of chapter five's table of contents:

• Chapter Fourteen - Protecting Freedom of Religion in Prison: The Free Exercise Clause and RLUIPA. And here is a screenshot of what you can expect to find in this chapter:

Is the Langdellian case method finally showing signs of aging? Should law professors abandon the casebook/Socratic method of teaching law in favor of the "context-and-practice method"? I invite readers to share their thoughts by leaving a comment below!

Issues in Constitutional Litigation: A Context and Practice Casebook [Book Review - Part 1 of 2]

Each year new crops of wide-eyed 1Ls listen to law professors opine that they must learn how to "think like a lawyer.” Yet, as the New York Time’s David Segal pointed out in a recent article entitled “What They Don’t Teach Law Students: Lawyering,” the law-school curriculum has, for more than a century now, “emphasized the theoretical over the useful.” But to quote the great Bob Dylan, “The times they are a-changin.’”

According to an article in the Wall Street Journal (here), many of the nation’s top law schools “are throwing out decades of tradition by replacing textbook courses” with courses like Indiana Law’s “course of so-called emotional intelligence,” Harvard Law’s new “problem-solving class for first-year students,” and Stanford’s “full-time clinical course” in which students must complete “several 40-hour plus weeks of actual case work” to graduate.

Professor Sarah Ricks of the Rutgers School of Law was nice enough to send me a courtesy copy of her new casebook, which she coauthored with Professor Evelyn Tenenbaum of Albany Law School, entitled Current Issues in Constitutional Litigation: A Context and Practice Casebook (Carolina Academic Press 2011). As the title suggests, this casebook is designed to help students think about the law from the perspective of a practicing lawyer. Like many of the great casebooks on the subject that have come before it, Issues in Constitutional Litigation covers the landmark Supreme Court cases with intelligent commentary and thoughtful organization. Unlike many of the great casebooks on the subject that have come before it, the book also focuses on federal circuit decisions, with a particular emphasis on both established and emerging circuit splits. Each chapter also strives to capture the human element of practicing law--something that legal opinions frequently fail to convey. Students will read letters from inmates, review historical documents like the 1867 cover of Harper's Weekly depicting black men casting their "first vote," receive practice pointers from seasoned veterans, and receive exposure to a host of other "real-world" issues that help bring the cases to life.

To be clear, Issues in Constitutional Litigations does not trash the traditional casebook model. The important cases are all still there. Instead, the book improves upon the old casebook model in two important ways. First, it places each case in a broader context that helps explain the doctrinal developments that might otherwise feel counterintuitive or arbitrary to students who limit their study of the subject to the four corners of the opinions.

Second, the book emphasizes the advocate's role in shaping the development of constitutional law. This is a critical component of thinking like a lawyer; and one that the casebook/Socratic method tends to neglect. The biggest criticism I have heard from seasoned attorneys about their freshly minted colleagues--which I largely attribute to the casebook/Soctratic method of teaching--is that law students graduate with the impression that they are supposed to analyze and apply the law in a disinterested, neutral manner as they might in the classroom when called on by their professor to recite the previous night's reading assignment. Issues in Constitutional Litigation does an excellent job illustrating the relationship that attorneys have with the court and their client, as well as the active role attorneys play in shaping the law through zealous advocacy for their client's interests. In other words, the book focuses the reader's attention on the process through which constitutional law is made, not solely on the finished product of that process.

The book, Professor Ricks explains, accomplishes this by "plac[ing] students in roles as practitioners handling simulated law practice problems" and provides a more engaging learning experience through the use of "exercises, visual aids, and questions to guide student reading." The book also "includes materials that help students reflect on their professional roles.” You can purchase Current Issues in Constitutional Litigation online here. Tomorrow’s post will feature an excerpt from the book that you won’t want to miss. 

A Bad Deal: Can a Court Force Trial After Accepting a Defendant's Guilty Plea?

Given the slew of bad lawyer shows that have aired over the past few years, I was initially skeptical about NBC's new show, The Firm, which picks up where John Grisham's novel by the same name left off. I was pleasantly surprised after watching the first episode, however, and have been thoroughly entertained ever since. One particularly captivating episode is loosely based on the "prisoner's dilemma," which you may recall from your first year of law school. This episode provides a glimpse (albeit, a dramatic glimpse) into the dymanics of plea bargaining. You can catch the full episode below.

In a way, plea bargains resemble contracts. After haggling over the value of their case, a prosecutor agrees to pursue a more lenient sentence in exchange for the defendant’s plea of guilt. The parties then present their plea bargain to a judge, who retains final authority over sentencing matters. Most of the time, the judge will simply accept the plea bargain, enter the proposed sentence, and move on to the next case on his or her docket. But not always.

Sometimes the district court will accept a plea agreement, only to later vacate it and force the defendant to stand trial. Last week a district court identified a wide, well-established circuit split over whether this practice violates the Double Jeopardy Clause’s mandate that “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The case, Cabrera v. Acevedo, makes the following observation:

The Supreme Court has not decided the issue of whether double jeopardy is violated when a trial court vacates a guilty plea and forces the defendant to stand trial. While it is clear that, for purposes of the Fourteenth Amendment, a criminal defendant “does not have an absolute right under the Constitution to have his guilty plea accepted by the court,” North Carolina v. Alford, 400 U.S. 25, 38 n.11 (1970), once the plea is accepted, it is unresolved whether double jeopardy prevents a court from sua sponte vacating the plea and proceeding to trial. The federal circuits are split on this question. See U.S. v. Santiago Soto, 825 F.2d 616 (1st Cir. 1987); Gilmore v. Zimmerman, 793 F.2d 564 (3rd Cir. 1986) (trial judge's sua sponte decision to vacate the defendant’s guilty plea to manslaughter and force him to stand trial for homicide charge did not violate double jeopardy.); United States v. Whitley, 759 F.2d 327, 332 (4th Cir. 1985) (“After a guilty plea has been set aside, neither retrial nor an increased sentence infringes the rights protected by the double jeopardy clause.”); United States v. Kim, 884 F.2d 189 (5th Cir. 1989); but see Morris v. Reynolds, 264 F.3d 38 (2d Cir. 2001) (“Given that a guilty plea is a conviction, and that the Double Jeopardy Clause protects against a second prosecution for the same offense after conviction, the Clause prohibits a second prosecution for the same offense following a guilty plea.” (internal quotations and citations omitted)); U.S. v. Patterson, 381 F.3d 859, 865 (9th Cir. 2004) (“although the district court is free to reject the plea agreement after accepting a guilty plea, it is not free to vacate the plea either on the government’s motion or sua sponte). Without a clear holding from the United States Supreme Court resolving the issue in Petitioner’s favor, he cannot satisfy the stringent requirements of 28 U.S.C. § 2254(d)(2). See Carey v. Musladin, 549 U.S. 70, 76 (2006).

No. 11-C-1390 (N.D. Ill. Mar. 6, 2012) (parallel citations omitted).

 *UPDATE: Apparently the video does not work with certain browsers. If you cannot view the video, you can watch it on NBC's website here.

A New Metric for Measuring Circuit Court Performance

A few days ago I stumbled across The Journal of Law, an online periodical founded in 2011 that bills itself as  “an incubator of a sort, providing legal intellectuals with something akin to what business schools’ incubators offer entrepreneurs.” While this unconventional upstart may look like a law review, it's "really a bundle of small journals, all published in one volume.”

Earlier this month one of the mini journals, the Journal of Legal Metrics, published an article entitled “Appellate Review,” which outlines “an improved metric of appellate review  – one which measures circuit court performance by compiling data on the Court’s resolution of circuit splits.” The authors, Tom Cummins (a law clerk in the E.D. Mich.) and Adam Aft (a law clerk for the Fifth Circuit), argue that the frequency with which the Supreme Court agrees with a particular circuit’s position in resolving a circuit split paints a more comprehensive picture of a circuit’s performance than “simply calculating how frequently the [Supreme] Court affirms [a circuit court's] judgment below.”  

Last December CircuitSplits.com launched its “Conflict Resolution” infographic series in which I wrote about the “number of insights that might be gleaned from examining the circuit splits recently resolved by the Supreme Court.” For more on that series, click here.

So, after crunching the numbers, what did the authors discover? Here are the highlights based on the Supreme Court's October term 2010. I've highlighted the top-performing circuit in green and the bottom-performing circuit in red under each of the competing metrics.

1. Traditional Metric: Direct Affirmance Rate

% Affirmed by Direct Review (#Aff'd/#Decided)

• 1st Circuit: 100% (2/2)
• 2nd Circuit: 25% (1/4)
• 3rd Circuit:40% (2/5)
• 4th Circuit: 50% (2/4)
• 5th Circuit: 20% (1/5)
• 6th Circuit: 17% (1/6)
• 7th Circuit: 40% (2/5)
• 8th Circuit: 25% (1/4)
• 9th Circuit: 21% (5/26)
• 10th Circuit N/A (0/0)
• 11th Circuit: 33% (1/3)
• D.C. Circuit: N/A (0/0)
• Average: 28% (22)

(Check out page 4 of SCOTUSblog's OT2010 stat pack here for the full "circuit scorecard.") Now compare the affirmance rates above with, what the authors refer to as, each circuit's "parallel review affirmance rates":

2. New Metric: Parallel Affirmance Rate

% Affirmed by Parallel Review

• 1st Circuit: 86%
• 2nd Circuit: 60%
• 3rd Circuit: 78%
• 4th Circuit: 67%
• 5th Circuit: 79%
• 6th Circuit: 50%
• 7th Circuit: 62%
• 8th Circuit: 50%
• 9th Circuit: 60%
• 10th Circuit 100%
• 11th Circuit: 45%
• D.C. Circuit: 33%
• Average: 64%

So what do these numbers mean? The article offers several noteworthy takeaways:

• The Supreme Court sided with the approach taken by the majority of circuits in 90% of the circuit splits.

• "The Fifth and the Tenth Circuits . . . were affirmed substantially more frequently than their peers" under the parallel-affirmance metric.

• "[U]nexpectedly, the questions that divide the circuits are not ones that particularly divide the Court. While the Court split five-four in 20 percent of its seventy-five merits opinions in 2010, it resolved no circuit split by a five-to-four decision. And it affirmed a startling 70 percent of the circuit splits either unanimously or eight-one (11 percent higher than generally observed in the 2010 term)."

• "[O]n parallel review, the average affirmance rate more than doubles, from 28 to 64 percent."

• "The Fifth Circuit, which was affirmed only 20 percent of the time on primary review (resulting in the second lowest affirmance rate), was vindicated 79 percent of the time on parallel review (resulting in the third highest affirmance rate)."

• "Our observations from the 2010 term . . . were consistent with the observations from the 2005-2008 terms."

I highly recommend reading the entire article when you have a chance, which you can find here: Cummins, Tom and Aft, Adam, Appellate Review (February 7, 2012). Journal of Law, Vol. 2, (Journal of Legal Metrics, Vol. 1), No. 1, 2012 . Available at SSRN: http://ssrn.com/abstract=2001093.

Circuits Split Over the "Great Writ"

Sometimes referred to as the “Great Writ,” a “writ of habeas corpus” is a procedural mechanism through which a prisoner may demand that their "jailer" appear before a federal judge and “show cause” for their incarceration. (As a side note, since habeas applications are filed against the custodian who actually supervises the inmate's detention rather than the state itself, the resulting case names typically consist of the names of two individuals rather than one individual versus one state (e.g., “Paul Prisoner v. Ringo Warden” rather than “Paul Prisoner v. State of New York”).)

As the Fifth Circuit recently explained on December 27, 2011 in Hines v. Thaler,

Under [28 U.S.C.]§ 2254(d)(2), a federal district court may grant habeas relief “only if the state court's adjudication of his claim on the merits . . . ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’” Rabe, 649 F.3d at 308 (quoting 28 U.S.C. § 2254(d)).

No. 11-70010 (5th Cir. Dec. 27, 2011) (unpublished) (ellipsis in original; emphasis added).  So, if a prisoner files a writ of habeas corpus under 28 U.S.C. § 2254(d)(2) challenging the correctness of a state court’s factual determination, should federal courts apply the more rigorous “clear and convincing” standard of review found in § 2254(e)(1), or the more lenient “unreasonable determination” standard provided by § 2254(d)(2)?  In a footnote to the block-quoted text above, the Fifth Circuit identified the following circuit conflict over this question:

We also note that under AEDPA “a determination of a factual issue made by a State court shall be presumed to be correct,” such that “[t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The relationship between this provision and § 2254(d)(2) is ambiguous. As this court has previously explained, “[w]e do not make any pronouncements as to whether the more deferential standard prescribed in § 2254(e)(1) applies in every case presenting a challenge under § 2254(d)(2),” a question that the Supreme Court has left open. See Turner v. Epps, 412 F. App’x 696, 700 n.2 (5th Cir. 2011) (citing Wood v. Allen, 130 S. Ct. 841, 848–49, 175 L. Ed. 2d 738 (2010) (observing, but not resolving, the circuit split among courts regarding the relationship between § 2254(d)(2) and § 2254(e)(1))). Below, we hold that reasonable jurists could not debate the correctness of the district court's determination that the state court's adjudication was not based on an unreasonable determination of the facts. Therefore, we see no need to resolve which standard—the more rigorous “clear and convincing” or the more lenient “unreasonable determination”—should govern this case and do not consider this issue further.

Id. (emphasis added).

(Image courtesy of Paul D. Halliday's "Habeas Corpus: From England to Empire," which can be found on Amazon.com here.)