On Tuesday, the Supreme Court’s hearings-by-telephone will be on two cases that appear to be narrow as well as technical in scope. Rather than spend considerable effort on explaining them, this essay will use them as a basis for exploring the Court’s case-selection process – that is, what makes a case qualify for the rarity of Supreme Court review? (The online version of C-SPAN-TV is providing audio broadcasts of every hearing the Justices hold, at cspan.org/supremecourt Tuesday’s broadcast begins at 10 a.m.)
Background: Alone among the federal courts that Congress created in 1789, to put the Constitution’s Article III into operation, only the Supreme Court has the power to choose what it is willing to decide. That was not always true; from the beginning until 1925, the Court generally had to hear and decide each case filed with it, so long as each qualified as a legitimate case under the Court’s Article III powers.
In 1925, however, Congress decided that – for a large part of the cases filed with the Court – the Justices could grant or deny review, as they chose. (There remain, still today, a very few types of cases where Congress has ordered the Court to accept review, but those are not numerous, in any year. Even when the Court accepts review of such a case, it almost always will require lawyers to show why review was mandatory.)
For the past 96 years, the process the Court has followed when it chooses to decide most of its cases is review by “certiorari.” That Latin word simply means that, when the Court chooses to grant review, it orders the lower court to “certify” the record of the case as it unfolded prior to reaching the Justices. (The cases on this docket have come to the Justices from lower courts, federal or state. There is a special docket for cases that begin and end in the Supreme Court itself – usually, disputes between two states over boundaries or over the sharing of the waters of rivers. Even for those, the Court generally has discretion not to get involved.)
The Court always has had many more cases seeking “certiorari” review than it has felt willing to decide. For the most recent term of the Court for which there are final statistics, it heard 73 out of 5,411 filed cases. By the end of that term, it issued only 53 full-scale opinions to dispose of the cases it heard. The number of signed opinions has been going down steadily for several years. No one outside the Court knows why.
That clearly demonstrates how rare, perhaps how exotic, it is for a lawyer to get a case actually decided by the Court. The Court itself likes to say, often, that it is “a Court of review, not of first view,” emphasizing that it leaves much of the development of federal law to the lower courts. The Court’s own rules warn lawyers: “Review on a writ of certiorari is not a matter of right, but of judicial discretion,” adding that review will be granted “only for compelling reasons.”
The process, in actual operation, is not as random as it sometimes seems. For example, the federal government usually has a much greater chance of getting its appeals reviewed, out of the Court’s respect for another branch of the national government. It can also make a difference if the appeal papers are especially well done, and many of the Court’s cases are brought to it by a fairly small circle of the nation’s most talented lawyers.
The Court, though, does hear just a few cases each term that are brought to it by poor people or prison inmates, those who can’t afford a lawyer. When such a “pauper” case is granted, the Court will name a qualified lawyer to handle it. And, if a poor person is on the other side of a government appeal, then, too, the individual will get a free lawyer to take on the case. That, in fact, happened in the second case the Court is to hear Tuesday, on immigration law.
By the time any appeal reaches the Supreme Court, there is almost certainly at least one good argument – and maybe more – why the Court ought to hear it, and, equally, at least one good argument, maybe more, against review. That is a feature of the “adversary system” of the law: two sides, genuinely in dispute, willing to battle it out (unless they settle, ending the controversy).
That system dates to early colonial times in America, and has been a feature of law in England since the 1730s, according to historians. The U.S. Constitution itself has something to say about this: it limits the federal courts, including the Supreme Court, to deciding actual “cases or controversies.” Congress has a lot of control over what appeals the Court can decide; in any appeal to the Court, the lawyer must specify, up front, how the Court does have jurisdiction.
Suppose, though, that an appeal reaches the Court, with that side arguing that the lower court was wrong, but the other side comes in and tells the Court it agrees with that argument. Does that doom the appeal? Not necessarily; if the Court itself thinks there remains a real controversy worth its time, it will choose an experienced lawyer to come in to make the opposing argument. There are scholars who have tried to convince the Court that it should stop that practice, because the two sides are not in dispute, but the Court nevertheless hears a few such cases.
The Court generally depends upon lawyers to bring cases to it; the Justices have no power to create a case. However, they can send out hints of issues that they may think should be explored at some point, if not actually at stake in a case,, and those hints are rarely ignored by lawyers eager to oblige.
When the Court opts to decide a case, it does not explain why. The Court’s rules give a few samples of why: split decisions on an issue in the lower federal courts, split decisions among state courts on federal legal issues, or a lower federal or state court has decided “an important question of federal law that has not been, but should be, settled by this Court” or has decided it in a way that conflicts with a prior Supreme Court decision. Obviously, those rules leave a lot of leeway.
When the Court issues a final decision in a case it has heard, it usually explains why it had agreed to do so. But there are no explanations when it refuses review, and many cases that would seem to be entirely worthy of the Court’s time simply fail to make the cut.
Because the Court is so sparing in how it selects cases, each decision that does emerge from this process takes on more significance and helps fill in the portrait of the Court – how divided it can be, how serious its internal disputes are, which philosophical “bloc” has prevailed the most, how much labor has gone into making the decision, how clearly – or less than fully clear – the decision settles a controversy.
It is probably true, at least in general, that each case the Justices decide will be important, at least to the two sides involved, and to others whose interests depended on the outcome. In reality, though, each decision actually settles only the specific case that was heard, leaving it to lower courts to apply the result to similar or parallel cases. The reasoning the Court uses, however, is binding on the law. If a decision is based on an interpretation of a federal law, everyone must follow it unless Congress changes the law. (The Court itself does not settle the meaning of state laws; it leaves that to state courts.) If the Court issues a constitutional decision, on either a federal or a state law, only a formal constitutional amendment can change it.
Let’s take a brief look at the two cases the Court will be hearing on Tuesday, and speculate about why they were granted review. (Let’s put to one side the possibility that the Court added some of these cases to its final public sitting as its term wound toward a close because, up to then, it had not taken on a lot of work and wanted to fill out the decision calendar a bit more.)
The first case, Hollyfrontier Cheyenne Refining LLC v. Renewable Fuels Association, involves a claim that a federal appeals court decision threatens to put out of business a lot of small refineries because that court imposed a more onerous duty on those refineries to show that it would be a hardship for them to blend their gasoline or diesel fuels with an annually increasing amount of “renewable fuels,” such as ethanol – a colorless liquid, burning with less air pollution, that is derived by fermenting a plant, such as corn.
In laws passed in 2005 and 2007, Congress mandated that producers of transportation fuels include a rising proportion of renewable fuels in their annual production output. One of the reasons, of course, was Congress’s interest in cutting down emission of climate-changing “greenhouse gases” from the burning of fossil fuels. Another reason was to help the agricultural producers of the bio-crops.
This case involves three small refineries that had obtained, from the Environmental Protection Agency, hardship exemptions from those requirements. A group of trade associations of producers of such renewable fuels, obviously interested in getting more of their production blended into gasoline and diesel fuels, challenged those exemptions in a federal appeals court, and won.
Likely reasons why the Court granted review of the small refineries’ appeal: (1) the law says that refineries can seek a hardship exemption “at any time,” but the appeals court added to what they must prove to get a renewal of an exemption; (2) the claim that Congress fashioned the exemption regime explicitly to avoid putting too great a burden on small refineries; and (3) the potential that the lower court ruling will actually force a shutdown of the small plants.
The second case, United States v. Palomar-Santiago, is an appeal by the federal government, and it may have enjoyed the usual advantage that the Executive Branch has in gaining review. The case involves the interpretation of a federal immigration law, and the Court has long been willing to defer to the federal government’s application of those laws – as, for example, when it heard the Trump Administration’s defense of a “Muslim ban,” and upheld it.
The law at issue Tuesday deals with illegal entry into the U.S. of a foreign national who had previously been deported for, among other reasons, having committed a crime (an “aggravated felony”) while in this country. That law makes such a reentry a new federal crime, but it allows the individual to defend against the new prosecution by showing that the earlier crime would no longer be considered the kind that would lead to deportation. It adds, though, that the individual must show that this claim had actually been raised by the individual back when deportation had been ordered.
The Supreme Court, in a 1987 decision, declared that the Constitution required that defense as a necessary option to have a court review the basis for deportation. Congress responded by writing that into federal law in 1996.
The case involves a Mexican national, Refugio Palomar-Santiago, who had been deported in 1998 and then illegally came back, and faced a new criminal charge in 2017. His prior deportation had been based upon a 1991 conviction for a DUI (drunk or impaired driving) that caused bodily injury. At the time, that qualified as an “aggravated felony.” But, in the meantime, a federal appeals court had ruled in 2001 that that particular crime no longer qualified as an “aggravated felony,” so the federal courts dismissed the new illegal entry charge against Palomar-Santiago. The federal government appealed that to the Supreme Court.
The government argues that, in this case, the appeals court automatically wiped out a new prosecution without requiring the foreign national to show that he had been deprived of a chance to make his challenge before being deported earlier.
Likely reasons why the Court agreed to hear the case: (1) the government was the appealing party, raising a plea based directly on the specific language of the federal law at issue; (2) the perception that the appeals court simply made up its own automatic remedy for dealing with a change in what amounted to a deportable crime; (3) a complaint by one of the judges on that appeals court that the majority had created on its own a retroactive change in the law, and (4) the existence of a split among the federal appeals courts on the issue.