The Death Of The Supreme Court's Certified Question Jurisdiction

Catholic University Law Review

Volumn 59, Issue 2, 2010, Pages 483-492

  Nielson, Aaron ^a  

^a Kirkland and Ellis LLP ^*  (United States)

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EID: 77952315402     PISSN: 00088390     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (98)

1. Cf. Robert Stevens, Law Schools and Law Students, 59 VA. L. REV. 551, 638 (1973) (observing that approximately one-third of surveyed law students criticized the Socratic method, finding it demeaning, confusing, neglecting substance, and encouraging irrelevant discussion and "game-playing").
2. Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring).
3. See 28 U.S.C. §1254(2) (2006) (empowering courts of appeals to certify questions of law to the United States Supreme Court at any time that "instructions are desired").
4. See Act of Apr. 29, 1802, ch. 31, §6, 2 Stat. 156, 159-61 (permitting circuit courts to certify questions to the Supreme Court);
5. see also infra notes 19-25 and accompanying text.
6. See, e.g, United States v. White, 551 F.3d 381, 384-86 (6th Cir. 2008) (en banc)
7. (citing United States v. Booker, 543 U.S. 220, 229 n.1, 244 (2005)) (deciding whether, in light of the substantive and remedial holdings of United States v. Booker, a sentence enhancement can be based on acquitted conduct), cert, denied, 129 S. Ct. 2071 (2009). In Booker, the Supreme Court held that a judge relying on a fact not found by a jury to enhance a mandatory sentence under the Federal Sentencing Guidelines violated the Sixth Amendment right to a jury trial.
8. Booker, 543 U.S. at 229 n. 1,244.
9. See, e.g., Bismullah v. Gates, 551 F.3d 1068, 1070 (D.C. Cir. 2009)
10. (citing Boumediene v. Bush, 128 S. Ct. 2229 (2008)) (deciding whether, in light of Boumediene v. Bush, the court had jurisdiction under the Detainee Treatment Act).
11. In Boumediene, the Supreme Court held that the Suspension Clause of the Constitution applied in Guantanamo Bay and that the Military Commissions Act did not meet constitutional requirements for lawful suspension of habeas corpus. Boumediene, 128 S. Ct. at 2262.
12. See, e.g., North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274, 285-86 (4th Cir. 2008)
13. (citing McConnell v. FEC, 540 U.S. 93 (2003)) (deciding whether campaign laws are facially valid after McConnell v. FEC). In McConnell, the Supreme Court rejected a facial First Amendment challenge to a campaign finance statute.
14. McConnell, 540 U.S. at 207.
15. See, e.g., El-Shifa Pharm. Indus. Co. v. United States, 559 F.3d 578 (D.C. Cir. 2009), vacated, 330 F. App'x 200 (D.C. Cir. 2009)
16. (deciding the scope of the political question doctrine under cases such as Baker v. Carr, 369 U.S. 186 (1962)).
17. -71 U.S. (4 Wall.) 2, 127 (1866) (holding unconstitutional the use of military tribunals when civilian courts are still available).
18. -319 U.S. 432, 433, 436 (1943) (ruling in response to a certified question that the federal appellate court had jurisdiction to review a district court decision). On remand, the circuit court entered its judgment, and the Supreme Court, on a writ of certiorari, upheld the shameful treatment of a group of American citizens.
19. See Korematsu v. United States, 323 U.S. 214, 223-24 (1944) (upholding the constitutionality of an order that called for segregating Japanese Americans during World War II).
20. Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges'Bill, 100 COLUM. L. REV. 1643,1712 (2000).
21. See id. at 1712 & n.404.
22. See id. at 1712.
23. James William Moore & Allan D. Vestal, Present and Potential Role of Certification in Federal Appellate Procedure, 35 VA. L. REV. 1 (1949).
24. Id. at 24-25.
25. United States v. Seale, 130 S. Ct. 12 (2009) (statement of Stevens, J.).
26. See, e.g., 42 U.S.C. §1973b(a)(5) (2006) (providing a right of direct appeal to the Supreme Court in certain cases relating to voting rights);
27. see also Nw. Austin Mun. Util. Dist No. One v. Holder, 129 S. Ct. 2504 (2009).
28. See 28 U.S.C. §1254(1) (articulating the certiorari process for courts of appeals).
29. -28 U.S.C. §1254(2);
30. see also SUP. CT. R. 19 (outlining the "[p]rocedure on a [c]ertified [qjuestion").
31. Act of June 27, 1988, Pub. L. No.100-352, §2, 102 Stat. 662, 662 (1988) (codified as amended at 28 U.S.C. §1254 (2006)).
32. See Report of the Study Group on the Caseload of the Supreme Court, 57 F.R.D. 573, 603 (1972) ("We also recommend repeal of the authorization for certification of questions from a court of appeals to the Supreme Court.").
33. Act of June 25, 1948, Pub. L. No.80-773, §1254(3), 62 Stat. 869, 928 codified as amended at 28 U.S.C. §1254(2) (2006)).
34. See Act of Feb. 13, 1925, ch. 229, sec. 239, 43 Stat. 936, 938;
35. see also 17 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER & VIKRAM DAVID AMAR, FEDERAL PRACTICE AND PROCEDURE §4038 (3d ed. 2007) [hereinafter WRIGHT & MILLER] (explaining the history of certification jurisdiction).
36. Act of Apr. 29, 1802, ch. 31, sec. 6, 2 Stat. 156,159.
37. United States v. Daniel, 19 U.S. (6 Wheat) 542, 548 (1821).
38. United States v. Rider, 163 U.S. 132,138 (1896) ("[A]s to criminal cases a certificate of division was the only mode in which alleged errors could be reviewed.").
39. Id. at 137.
40. Act of Mar. 3, 1891, ch. 517, sec. 2, 26 Stat. 826, 826-27, 830 (1891);
41. see also Evan A. Evans, Fifty Years of the United States Circuit Court of Appeals, 9 Mo. L. REV. 189, 201 (1944) (describing the history of the Judiciary Act, primarily sponsored by William M. Evarts).
42. Hartnett, supra note 11, at 1710 (observing that "[i]n the decade from 1927 to 1936, courts of appeals issued seventy-two certificates")
43. see also Moore & Vestal, supra note 14, at 25-26 n.99 (presenting a chart comparing the number of cases certified by courts from 1927-36 and 1937-46).
44. Moore & Vestal, supra note 14, app. I, at 46.
45. Id. at 25-26 n.99.
46. Hartnett, supra note 11, at 1712.
47. Felker v. Turpin, 518 U.S. 651,667 (Souter, J., concurring).
48. WRIGHT & MILLER, supra note 23, at §4038.
49. United States v. Seale, 130 S. Ct. 12 (2009) (statement of Stevens, J.).
50. United States v. Seale, 577 F.3d 566, 571 (5th Cir. 2009) (per curiam).
51. See United States v. Seale, 542 F.3d 1033, 1034 (5th Cir. 2008), rev'd on reh'g, 577 F.3d 566 (5th Cir. 2009);
52. Moore v. Franklin County, Miss., 638 F. Supp. 2d 703, 705 (S.D. Miss. 2009)
53. Moore, 638 F. Supp. 2d at 705.
54. Seole, 542 F.3d at 1034.
55. Id. at 1045.
56. Id.
57. See Seale, 577 F.3d at 568
58. (citing Furman v. Georgia, 408 U.S. 238, 239-40 (1972) (per curiam)
59. and United States v. Jackson, 390 U.S. 570, 581-82 (1968)).
60. Seale, 542 F.3d at 1038 ("[C]hanges to criminal statutes of limitations presumptively apply retroactively to pre-amendment offenses, absent Ex Post Facto concerns....").
61. Seale, 577 F.3d at 570.
62. Id.noting that the divided vote by the en banc court rendered the per curiam order devoid of precedential value).
63. Id. at 572 (Jones, J., dissenting) (arguing that certification "is not worth this busy court's time or that of the also-busy Supreme Court"). The dissent also noted that the panel "might ultimately" find another way to reverse the conviction, so it was "imprudent" to certify the question at that time.
64. Id.
65. Id. at 570-571
66. WRIGHT & MILLER, supra note 23, at §4038 ("In form and history, this certified question jurisdiction is mandatory.").
67. Felix Frankfurter & James M. Landis, The Business of the Supreme Court at October Term, 1929, 44 HARV. L. REV. 1, 36 (1931) (discussing the procedure of certification).
68. Moore & Vestal, supra note 14, at 23, 42. The Court was also wary of "pro forma certification" (that is, circuit courts shirking their duties) and answering questions "without a clear indication that the facts of the case require such a declaration."
69. Id. at 23. As Moore and Vestal ultimately observed, however, none of these concerns were serious problems.
70. Id. at 23-24.
71. Id. at 22.
72. Id. at 22-23 n.87.
73. Id. at 22 n.86.
74. See, e.g., EUGENE GRESSMAN ET AL., SUPREME COURT PRACTICE 596 (9th ed. 2007).
75. Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam).
76. Id.
77. see also Comment, Certified Question on a Division of Opinion Between Two Panels of a Court of Appeals Dismissed, 43 IOWA L. REV. 432, 436 (1958) (discussing Wisniewski as "another step in the process of severely limiting the effectiveness of a very useful procedural tool"). In its zeal to eradicate this procedural device, the Court has even limited the category of cases it expressly reserved in Wisniewski.
78. In United States v. Fqfowora, the Court- in a onesentence order-dismissed a question from the D.C. Circuit that was premised on two cases in which certiorari had been granted but had not yet been decided. 489 U.S. 1002, 1002-03 (1989).
79. Evans, supra note 28, at 202 n.72 (explaining the attitude of the Supreme Court toward the certification of questions from circuit courts of appeals).
80. Moore & Vestal, supra note 14, at 21-22. In 2004, the Second Circuit, sitting en banc, certified three questions, which the Supreme Court "summarily dismissed," instead granting certiorari on two separate cases raising the same issue.
81. GRESSMAN, supra note 54, at 597
82. (citing United States v. Penaranda, 543 U.S. 1117, 1117 (2005)).
83. In 1992, a panel of the Fifth Circuit certified a question, which the Court summarily dismissed citing its ruling in Wisniewski. See In re Slagle, 504 U.S. 952, 952-53 (1992) (finding that jurisdiction over the disputed issue "rests in the first instance in the Court of Appeals").
84. See Moore & Vestal, supra note 14, at 21 (noting that the courts of appeals "rely almost entirely upon certiorari to guarantee correct adjudication").
85. Taylor v. Atl. Mar. Co., 181 F.2d 84, 85 (2d Cir. 1950) (per curiam) (reasoning that the Supreme Court should have exclusive control over the cases it hears).
86. Id.
87. THE PRINCESS BRIDE (Metro-Goldwyn-Mayer 1987).
88. Moore & Vestal, supra note 14, at 23-25.
89. Hartnett supra note 11, at 1711-1712 & 1712 n.404 (reporting that during the period from 1946 to 2000, the Court has only accepted a certified question four times).
90. U.S. CONST, art. III, §2 (emphasis added).
91. See, e.g., ANTONINN SCALIA, A MATTER OF INTERPRETATION 18-23 (1997). One objection to certification is that it may stunt the development of sound precedent by allowing courts of appeals to take the easy route of certifying the question rather than digging in and rendering a thoughtful decision. This strikes me as unlikely, but if it were to become a serious problem, Congress could amend 28 U.S.C. §1254(2).
92. Hartnett, supra note 11, at 1711 n.401
93. (citing Moore & Vestal, supra note 14, at 43) (noting that Moore & Vestal did not "condemn or question the Court's hostility to a valid Act of Congress").
94. United States v. Seale, 130 S. Ct. 12 (2009) (statement of Stevens, J.).
95. Id.
96. Moore & Vestal, supra note 14, at 23-25.
97. See, e.g., Adam Liptak, The Case of the Plummeting Supreme Court Docket, N.Y. TIMES, Sept. 28, 2009, at A18 (discussing possible reasons for the Court's diminished docket).
98. See Memorandum from Paul D. Carrington et al., Four Proposals for a Judiciary Act 14, 16 (Feb. 9, 2009), available at http://www.paulcarrington.com/ Four%20Proposals%20for%20a%25 20Judiciary%20Act.htm ("We propose the establishment of a body of experienced appellate judges empowered and required to designate a substantial number of cases that the Court would then be required to decide on their merits.").