Setting the supreme court's agenda: Is there a place for certification?

George Washington Law Review

Volumn 78, Issue 6, 2010, Pages 1310-1328

  Tyler, Amanda L ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 78149287260     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (139)

1. See Paul D. Carrington & Roger C Cramton, Judicial Independence in Excess: Reviving the Judicial Duty of the Supreme Court, 94 CORNELL L. REV. 587 (2009).
2. See id at 590 (quoting Richard A. Posner, Foreword- A Political Court, 119 HARV. L. REV. 32, 35-39, 60 (2005));
3. see also Kenneth W. Starr, The Supreme Court and Its Shrinking Docket: The Ghost of William Howard Taft, 90 MINN. L. REV. 1363, 1383 (2006) (expressing the same concern).
4. Carrington & Cramton, supra note 1, at 590.
5. Id. at 597.
6. See id. at 622.
7. Id.
8. See id. at 632;
9. see also Letter from Professor Vikram D. Amar et al. to Joseph R. Biden, Vice President of the United States, et al. (Feb. 9, 2009), available at http://www.scotusblog.com/ 2009/02/groups-proposals-for-supreme-court-reform (follow "Four Proposals for a Judiciary Act of 2009" hyperlink) (setting out four proposals for a Judiciary Act of 2009, many of which build on the work of Professors Carrington and Cramton).
10. See FED. JUDICIAL CTR., REPORT OF THE STUDY GROUP ON THE CASELOAD OF THE SUPREME COURT 18-24 (1972) (popularly known as the Freund Committee);
11. Paul A. Freund, Why We Need the National Court of Appeals, 59 A. B. A. J. 247, 250 (1973);
12. see also Carrington & Cramton, supra note 1, at 593 n.32 (listing five prior independent studies that have found problems in the relationship between the Supreme Court and lower courts).
13. Carrington & Cramton, supra note 1, at 632. The authors contemplate that retired Justices could also sit on the certiorari division. See id.
14. See id. at 633.
15. See id.
16. Id. at 635.
17. Id.
18. Edward A. Hartnett, Questioning Certiorari- Some Reflections Seventy-Five Years After the Judges' Bill, 100 COLUM. L. REV. 1643, 1712 (2000).
19. Compare Peter L. Strauss, One Hundred Fifty Cases per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1100 (1987) (noting that the Court tended to hear about 150 cases per year in the mid- to late 1980s), with Carrington & Cramton, supra note 1, at 630 (noting that the Court tended to hear about eighty cases per year in the mid- to late 2000s).
20. Starr, supra note 2, at 1368; see id. at 1369 tbl. (tracking growth in Supreme Court docket size from 1926 (1183 cases) to 2004 (8593 cases)).
21. Act of Feb. 13, 1925 (Judges' Bill), 43 Stat. 936.
22. Hartnett, supra note 14, at 1646.
23. See Jurisdiction of Circuit Courts of Appeals and United States Supreme Court Hearing on H.R. 10, 749 Before the H. Comm. on the Judiciary, 67th Cong. 20 (1922) [hereinafter 1922 Hearings] (statement of James M. Beck, Solicitor General of the United States), cited in Hartnett, supra note 14, at 1646. At the time, the Court was hearing about 225 cases each year and affirming other cases without the benefit of oral argument.
24. See Jonathan Sternberg, Deciding Not to Decide: The Judiciary Act of 1925 and the Dbcretionary Court, 33 J. SUP. CT. HIST. 1, 5 fig. (2008).
25. Carrington & Cramton, supra note 1, at 630. The rise and fall in the number of signed opinions issued by the Court is captured in a chart compiled by Professor David Stras. See David R. Stras, The Supreme Court's Gatekeepers: The Role of Law Clerks In the Certiorari Process, 85 TEX. L. REV. 947, 965 fig.1 (2007) (book review).
26. Much literature focuses on the role of the law clerks and the cert pool. See, e.g., ARTEMUS WARD & DAVID L. WEIDEN, SORCERERS' APPRENTICES: 100 YEARS OF LAW CLERKS AT THE UNITED STATES SUPREME COURT 143-44 (2006)
27. (citing Tony Mauro, Justices Give Key Role to Novice Lawyers, USA TODAY, June 5,1998, at 1A) (observing that law clerks in the cert pool are predisposed against recommending granting certiorari petitions). Professor Stras's work also highlights that the turnover of Justices in the late 1980s and early 1990s resulted in the replacement of Justices who voted to grant certiorari at a higher rate than those who took over their seats on the Court.
28. See David R. Stras, The Supreme Court's Declining Plenary Docket: A Membership-Based Explanation, 27 CONST. COMMENT, (forthcoming 2010), available at http:// ssrn.com/abstract-1476537.
29. Sanford Levinson, Assessing the Supreme Court's Current Caseload: A Question of Law or Politics?, 119 YALE L. J. ONLINE 99, 102 (2010), http://yalelawjournal.org/2010/02/01/ levinson.html.
30. Senator Specter has taken this position. See Arlen Specter, The Chamber of Secrets, NAT'L L. J., Aug. 3, 2009, at 38 (arguing that the Court should be taking, among others, more key cases testing the legality of executive action in the war on terrorism);
31. see also SUSAN Low BLOCH, VICKI C. JACKSON & THOMAS G. KRATTENMAKER, INSIDE THE SUPREME COURT: THE INSTITUTION AND ITS PROCEDURES 448 (2d ed. 2008)
32. (asking where the country would be without Brown v. Board of Education, 347 U.S. 483 (1954)).
33. But see J. Harvie Wilkinson III, If It Ain't Broke..., 119 YALE L. J. ONLINE 67, 67 (2009), http://yalelawjournal.org/2010/01/07/wilkinson.html (suggesting that the Court's case selection process currently works fine).
34. This suggestion arose in the comments of several participants at a fall 2009 conference on the Supreme Court sponsored by the Yale Supreme Court Advocacy Clinic and the Yale Law Journal Online. See Vicki Jackson, Remarks at the Yale Law School Clinic Conference: Important Questions of Federal Law: Assessing the Supreme Court's Case Selection Process (Sept. 18, 2009) (audio recording available at http://www.law.yale.edu/academics/10082.htm);
35. Carter Phillips, Remarks at the Yale Law School Clinic Conference: Important Questions of Federal Law: Assessing the Supreme Court's Case Selection Process (Sept. 18, 2009) (audio recording available at http://www.law.yale.edu/ academics/10082.htm). Professor Vicki Jackson, for example, suggested that to the extent that Congress reverts back to the days of providing for greater mandatory jurisdiction, it should require the Supreme Court to hear all direct appeals in death penalty cases. See Jackson, supra.
36. See William H. Taft, The Attacks on the Courts and Legal Procedure, KY. L. J., NOV. 1916, at 3, 3, 18 (publishing address delivered on May 23, 1914), cited in Hartnett, supra note 14, at 1661.
37. See Amanda Frost, Overvaluing Uniformity, 94 VA. L. REV. 1567, 1570 (2008) (questioning whether the Supreme Court's "fixation on standardizing the interpretation of federal law is worth the effort").
38. As one set of commentators phrased things: [I]f the [C]ourt is deciding considerably fewer cases, and if it is determined to settle as little controversy as possible in each case, then it is exerting only the most minimal supervisory control over the lower courts. Rather than "one supreme Court" being in charge of the judicial branch, as the Constitution provides, the hundreds of lower court appellate judges and thousands of lower court trial judges are increasingly on their own to do as they see fit in broad areas of commercial, criminal and constitutional law. Margaret Cordray & Richard Cordray, Numbers that Don't Befit the Court, WASH. POST, July 11, 2006, at A17.
39. In a departure from this common practice, Professor Levinson has suggested that state judges should sit on the certiorari division. See Levinson, supra note 22, at 111.
40. See RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 433 (6th ed. 2009)
41. (citing Michael E. Solimine, Supreme Court Monitoring of State Courts in the Twenty-First Century, 35 IND. L. REV. 335 (2002)) ("In the years since [the 1988 amendments to eliminate all mandatory review of state court decisions], the Supreme Court has reduced the number of cases that it hears annually, and a recent study found that the decline was particularly sharp for the state courts.").
42. See, e.g., 28 U.S.C. §§ 2244, 2253-2254 (2006) (limiting the opportunities for collateral habeas review of state court convictions and mandating deference to state court determinations of federal law).
43. See, e.g., Honorable Gerald B. Tjoflat, Circuit Judge, U.S. Court of Appeals for the Eleventh Circuit, Remarks at The George Washington University Law School Conference: Rethinking the Law Governing the Structure and Operation of the Supreme Court: Altering the Certiorari Process (Nov. 20, 2009) (transcript on file with The George Washington Law Review).
44. See Frederick Schauer, Abandoning the Guidance Function: Morse v. Frederick, 2007 SUP. CT. REV. 205, 206-07.
45. Id. at 207.
46. Id.
47. In an essay discussing the certiorari division proposal. Professor Daniel Meador refers to the assertion that lower courts and lawyers "need more definitive guidance from the top ... as to the mass of non-constitutional business that forms the grist of their everyday work" as "a relatively non-controversial proposition." Daniel J. Meador, Reining in the Superlegislature: A Response to Professors Carrington and Cramton, 94 CORNELL L. REV. 657, 662 (2009). Many others have echoed this idea. See, e.g., Starr, supra note 2, at 1364, 1383 (promoting the role of the Court in fostering uniformity of federal law). But see Frost, supra note 26, at 1637 (questioning this conclusion).
48. Letter from Oliver Wendell Holmes, Jr., to Franklin Ford (Feb. 8, 1908), in THE ESSENTIAL HOLMES 201 (Richard A. Posner ed., 1992). In this regard, Justice Brandeis's famous observation on stare decisis speaks equally to the need for uniform application of federal law.
49. See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting) ("Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.").
50. Carrington & Cramton, supra note 1, at 622 (citing Erwin N. Griswold, The Need for a Court of Tax Appeals, 57 HARV. L. REV. 1153, 1173 (1944)).
51. Employee Retirement Income Security Act of 1974, Pub. L. No. 93-406, 88 Stat. 829 (codified as amended at 29 U.S.C. §§ 1001-1461 (2006)).
52. Apprendi v. New Jersey, 530 U.S. 466, 544 (2000) (holding that any fact other than an offender's recidivism that increases a criminal penalty beyond the statutory maximum "must be submitted to a jury and proved beyond a reasonable doubt").
53. Blakely v. Washington, 542 U.S. 296, 303 (2004) (expanding Apprendi's principle to require jury factfinding of factors contained in sentencing guidelines that expand an offender's maximum criminal sentence).
54. United States v. Booker, 543 U.S. 220, 243-44 (2005) (holding United States Sentencing Guidelines unconstitutional for making a defendant's presumptive sentencing range turn on facts found by a judge rather than a jury).
55. As one Harvard Law Review student commentator observed: "Apprendi v. New Jersey spawned a series of Supreme Court sentencing decisions which, when viewed together, are at best confusing and at worst contradictory." The Supreme Court, 2006 Term-Leading Cases, 121 HARV. L. REV. 185, 225 (2007) (footnote omitted);
56. see also Douglas A. Berman, Foreword: Beyond Blakely and Booker: Pondering Modern Sentencing Process, 95 J. CRIM. L. & CRIMINOLOGY 653, 676 (2005) (offering a similar observation).
57. See Hartnett, supra note 14, at 1705. For example, Justice McReynolds testified: "[T]he real function of our court is this: To settle the law, so that lawyers may know how to advise their clients and so that trial judges may know how to instruct their juries or how to decide cases that come before them." Jurisdiction of Circuit Courts of Appeals and of the Supreme Court of the United States: Hearing on H.R. 8206 Before the H. Comm. on the Judiciary, 68th Cong., 2d Sess. 22 (1925) (statement of Justice McReynolds). Professor Hartnett notes that the Justices who testified also listed cases raising constitutional claims as among those cases that should always be granted. See Hartnett, supra note 14, at 1705.
58. Justices in Their Own Words: Granting Certiorari (C-SPAN television broadcast June 19, 2009), available at http://supremecourt.c-span.org/Video/ JusticeOwnWords/SC-Jus-Granting Certiorari.aspx [hereinafter Granting Certiorari] (interview with Chief Justice John G. Roberts).
59. This is not a new proposition by any stretch. As Professor Levinson noted recently, it goes back at least as far as the Court's decision in Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816), in which Justice Story emphasized "the importance, and even necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution" and referred to a state of disuniformity as "truly deplorable," id. at 347-48, cited in Levinson, supra note 22, at 100 & n.3.
60. See supra text accompanying notes 9-10.
61. See Carrington & Cramton, supra note 1, at 632-33.
62. See SUP. CT. R. 10 (providing that the existence of a conflict among the lower courts on an important issue of federal law may counsel in favor of a grant of certiorari); iee also 28 U.S.C. §§ 1254, 1257 (2006) (providing for the Supreme Court's certiorari jurisdiction and specifying additional case selection criteria).
63. Meador, supra note 35, at 663-64.
64. To be sure, this is somewhat of an unfair criticism, because it would be hard for any proposal, short of possibly that put forth by the Freund Committee, see supra text accompanying note 8, to accomplish anything else. Further, this criticism potentially could be levied at the suggested revival of certification advanced here. See infra Part III.
65. See Carrington & Cramton, supra note 1, at 590-91, 634.
66. Until Justice Stevens's retirement-and his replacement by former Solicitor General Elena Kagan-the Court was comprised of nine Justices who had previously served as federal appellate judges. See Biographies of the Current Justices, http://www.supremecourt.gov/about/ biographies.aspx (last visited Aug. 12, 2010).
67. See Meador, supra note 35, at 663 (observing that the certiorari division "can hardly deny" all " 'hot button' social cases"). There is, moreover, no reason to think that members of the division will not vote strategically in the same manner and to the same extent that Justices are accused of doing from time to time. Cf. H. W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 12-16 (1991) (discussing and calling into question the popular belief that strategic voting is common at the certiorari stage).
68. See generally, e.g., John F. Manning, What Divides Textualbts from Purposivbts?, 106 COLUM. L. REV. 70 (2006) (refining the modern textualist approach to statutory interpretation while maintaining that, unlike the purposivist approach, textualism alone honors legislative supremacy in statutory lawmaking).
69. Granting Certiorari, supra note 44.
70. See James William Moore & Allan D. Vestal, Present and Potential Role of Certification in Federal Appellate Procedure, 35 VA. L. REV. 1, 1 (1949).
71. See id. at 1-2.
72. See Carrington & Cramton, supra note 1, at 635.
73. United States v. Seale (Seale II), 570 F.3d 650 (5th Cir. 2009) (per curiam opinion by an equally divided en banc court),
74. vacating United States v. Seale (Seale I), 542 F.3d 1033 (5th Cir. 2008) (panel opinion).
75. See id. at 650-51. Specifically, the question posed in Seale was which statute of limitations applied to Seale's prosecution under 18 U.S.C. § 1201 (2006). The government commenced its prosecution in 2007 and based it on a kidnaping that took place in 1964.
76. See United States v. Seale (Seale III), 577 F.3d 566, 568-69 (5th Cir.) (per curiam opinion by an en banc court) (certifying the question to the Supreme Court), cert, dismissed, 130 S. Ct. 12, 12 (2009) (mem.). On one construction, Seale's prosecution could never be time-barred; on another construction, the statute of limitations had long since lapsed. See id.
77. See Seale III, 577 F.3d at 567, 571 (certifying the question to the Supreme Court).
78. See United States v. Seale, 130 S. Ct. 12, 12 (2009) (mem.), dismissing question certified by Seale III, 577 F.3d at 567, 571.
79. The certification statute is now codified at 28 U.S.C. § 1254 (2) (2006), having been revised and renumbered on several occasions over time. It provides: Cases in the courts of appeals may be reviewed by the Supreme Court by the following method[ ]: By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy. Id Supreme Court Rule 19 also speaks to certification. It provides: "A United States court of appeals may certify to this Court a question or proposition of law on which it seeks instruction for the proper decision of a case . . . . Only questions or propositions of law may be certified . . . " Sup. CT. R. 19(1). Notwithstanding the current phrasing of the statute and Rule in terms that easily could be read as permissive rather than mandatory, "[i]n form and history, this certified question jurisdiction is mandatory." 17 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 4038, at 62-64 & nn.2, 10 (3d ed. 2006);
80. see also Wheeler Lumber Bridge & Supply Co. v. United States, 281 U.S. 572, 577-78 (1930) (Van Devanter, J.) (describing certification jurisdiction as mandatory);
81. cf. Old Colony Trust Co. v. Comm'r, 279 U.S. 716, 728-29 (1929) (Taft, C. J.) (describing certification as "an invocation of the [Court's] appellate jurisdiction").
82. See Seale, 130 S. Ct. at 12-13 (Stevens, J., dissenting from dismissal of certified question).
83. See id. at 13.
84. Id.
85. see also id at 12 ("This certificate presents us with a pure question of law that may well determine the outcome of a number of cases of ugly racial violence remaining from the 1960s.").
86. Although the historical origins of certification put it within the Court's mandatory jurisdiction, and the Court technically treats certified questions this way when it dismisses them (rather than denying review of them), the Court's modern practice appears to be to apply the Rule of Four to certification requests no differently than petitions for certiorari. See, e.g., Atkins v. United States, 426 U.S. 944, 944 (1976) (mem.) (dismissing certificate notwithstanding the vote of three Justices to accept it).
87. See Seale, 130 S. Ct. at 12 (Stevens, J., dissenting from dismissal of certified question).
88. See Seale III, 577 F.3d 566, 568-69 (5th Cir.) (per curiam opinion by an en banc court) (certifying the question to the Supreme Court), cert, dismissed, Seale, 130 S. Ct. 12, 12 (2009) (mem.).
89. See Seale, 130 S. Ct. at 12-13 (Stevens, J., dissenting from dismissal of certified question).
90. Id. at 13.
91. Id. ("In my judgment, this case should be briefed and set for argument."). Notably, it is not just the Supreme Court that has resisted the practice. In a 1950 decision, a Second Circuit panel composed of Judges Learned Hand, Swan, and Clark suggested that the proper practice for the courts of appeals is to certify questions only where an aggrieved party might not have the ability to petition for a writ of certiorari or where a similar question is already pending before the Court. See Taylor v. Atl. Mar. Co., 181 F.2d 84, 85 (2d Cir. 1950) (per curiam).
92. Chi., Burlington & Quincy Ry. v. Williams, 214 U.S. 492, 496 (1909) (Holmes, J., dissenting).
93. Id. at 495-96.
94. See Act of Apr. 29, 1802, ch. 31, § 6, 2 Stat. 156, 159. This procedure was an important means by which deadlocks in the circuits, which were quite common because the circuits sat in panels of two, could be resolved. See Moore & Vestal, supra note 55, at 12;
95. see also id. at 10-12. Indeed, during this period, the Justices riding circuit sometimes purposefully divided with their counterparts so that decisions that might not otherwise qualify for Supreme Court review could be reviewed on certification.
96. See G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-35, at 173-74
97. (The Oliver Wendell Holmes Devise, History of the Supreme Court of the United States, vols. 3-4, 1988).
98. Act of Mar. 3, 1891 (Evarts Act), ch. 517, § 6, 26 Stat. 826, 828.
99. See id.
100. See 21 CONG. REC. 10,222 (1890) (statement of Sen. Evarts); see also Moore & Vestal, supra note 55, at 17 ("[T]he statute left little doubt that this procedure was devised to allow the circuit courts of appeals to assure themselves of the rectitude of the decisions which they rendered.").
101. In the wake of the Evarts Act, the Supreme Court rebuffed one effort by a court of appeals to certify an issue on which the circuits had divided, indicating that a division of authority was not, by itself, an appropriate basis for certification. See Columbus Watch Co. v. Robbins, 148 U.S. 266, 270 (1893) (dismissing the certified question). The Court, however, later answered a certified question arising out of similar circumstances.
102. See United States v. Woo Jan, 245 U.S. 552, 553, 558 (1918) (answering a certified question that had "given rise to diversity of decision" among the district courts and courts of appeals).
103. Hartnett, supra note 14, at 1710.
104. See 1922 Hearings, supra note 19, at 3, quoted in Hartnett, supra note 14, at 1665.
105. See Jurisdiction of Circuit Courts of Appeals and of the Supreme Court of the United States, Hearing on H.R. 8206 Before the H. Comm. on the Judiciary, 68th Cong. 29 (1924) (statement of Justice Van Devanter), quoted in Hartnett, supra note 14, at 1691.
106. Felix Frankfurter & James M. Landis, The Business of the Supreme Court at October Term, 1929, 44 HARV. L. REV. 1, 36 (1930) (emphasis added).
107. See Hartnett, supra note 14, at 1710 (noting that the courts of appeals issued seventytwo certificates between 1927 and 1936).
108. Id. at 1710-11.
109. Id. at 1712.
110. See Frankfurter & Landis, supra note 81, at 36.
111. See 17 WRIGHT ET AL., supra note 62, § 4038, at 65-80 & nn.16-21, 30-35, 38-47 (discussing various reasons and illustrative cases).
112. See United States v. Seale, 130 S. Ct. 12, 13 (2009) (mem.) (Stevens, J., dissenting from dismissal of certified question).
113. By my count, there have been at least six such cases since 1982, including one this past Term. See, e.g., United States v. Juvenile Male, No. 09-940 (U.S. June 7, 2010) (per curiam) (certifying to the Montana Supreme Court);
114. Stewart v. Smith, 534 U.S. 157, 159-60 (2001) (per curiam) (certifying to the Supreme Court of Arizona);
115. Fiore v. White, 528 U.S. 23, 29 (1999) (certifying to the Pennsylvania Supreme Court);
116. Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 398 (1988) (certifying to the Virginia Supreme Court);
117. Fla. Star v. B.J.F., 484 U.S. 984, 984 (1987) (mem.) (certifying to the Florida Supreme Court);
118. Zant v. Stephens, 456 U.S. 410, 416-17 (1982) (per curiam) (certifying to the Georgia Supreme Court). There may well be more. As noted above, this trend marries with a similar increase in lower federal courts certifying questions to state courts, something for which Second Circuit Judge Guido Calabresi (among others) has long advocated.
119. See Guido Calabresi, Federal and State Courts: Restoring a Workable Balance, 78 N.Y.U. L. REV. 1293, 1301 (2003).
120. See Arizonans for Official English v. Arizona, 520 U.S. 43, 75-80 (1997);
121. id. at 76 (observing that in this context certification may reduce costs and delay as compared to federal court abstention);
122. see also Bradford R. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. PA. L. REV. 1459, 1549-56 (1997) (promoting certification in light of Erie).
123. Arizonans for Official English, 520 U.S. at 77 (alteration in original)
124. (quoting Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974)).
125. See generally FALLON ET AL., supra note 29, at 1072-75.
126. See supra notes 74-81 and accompanying text.
127. See Act of Sept. 2, 1958, Pub. L. No. 85-919, 72 Stat. 1770, 1770 (amending 28 U.S.C. § 1292) (codified at 28 U.S.C. § 1292(b) (2006)) (providing that where a district judge in a civil action believes that an appeal "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal . . . may materially advance the ultimate termination of the litigation," an interlocutory appeal of an otherwise unappealable order may proceed if the court of appeals, in its discretion, permits the appeal).
128. 17 WRIGHT ET AL., supra note 62, § 4038, at 65 & n.15.
129. Id. § 4038, at 65 (footnote omitted).
130. Id. (footnote omitted). It is generally understood that even where a certified question is answered, the parties still enjoy the right to seek later review in the Supreme Court of other issues. See United States v. Barnett, 376 U.S. 681, 759 n.49 (1964) (Goldberg, J., dissenting) ("An answer to the certified question does not prevent defendants, if they are convicted, from raising other issues, not included in the certificate, on appeal from their convictions.").
131. Of course, to the extent that certification remains a dead letter, lower court judges certainly could make a practice of saying in published opinions that a particular issue is recurring and in need of clarification. But there are sometimes costs to waiting to decide issues that lend themselves well to certification. The Seale case demonstrates this point well. See supra notes 58-71 and accompanying text.
132. One commentator suggested this some time ago. See Comment, Federal Appellate Practice-Certified Question on a Division of Opinion Between Two Panels of a Court of Appeals Dismissed, 43 IOWA L. REV. 432, 436 (1958) ("[T]here is good reason for not entertaining a certificate prior to a[n] en banc hearing of the issue when the total tabulation of the vote in all the panels that have considered the issue is not an equal division.").
133. Cf. SAMUEL ESTREICHER & JOHN SEXTON, REDEFINING THE SUPREME COURT'S ROLE: A THEORY OF MANAGING THE FEDERAL JUDICIAL PROCESS 53-58 (1986) (discussing the Court's role to resolve intercourt conflicts);
134. id. at 58 (calling a conflict "intolerable" and worthy of Supreme Court review where at least three courts have passed on the question").
135. See generally Samuel Estreicher & John E. Sexton, A Managerial Theory of the Supreme Court's Responsibilities: An Empirical Study, 59 N.Y.U. L. REV. 681, 712-20 (1984) (discussing circuit court conflicts and proposing a managerial model of the Supreme Court for the promotion of uniformity in federal law).
136. 28 U.S.C. § 1254(2) (2006).
137. Cf. ESTREICHER & SEXTON, supra note 99, at 53-58.
138. See generally David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543 (1985) (defending the practice of the federal courts to exercise discretion with respect to jurisdiction as contributing to easing interbranch and intergovernmental tensions).
139. See supra text accompanying notes 27-30 (discussing the role of state courts in the judicial system).