Last week, the Supreme Court issued its first opinion on the merits of the 2011-2012 Term. From the point of view of the criminal defendant in the case, the Halloween Day decision likely seemed more of a trick than a treat. More generally, the ruling revealed some interesting things about how the Supreme Court reacts when it is frustrated over what it considers disobedience by lower courts—in particular, perhaps, the United States Court of Appeals for the Ninth Circuit.
The Smith Case: Shaken Baby Syndrome, or Something Else?
The facts of the case, Cavazos v. Smith, are tragic, even if the legal questions they present are somewhat technical. Shirley Ree Smith is a California grandmother who was convicted and sentenced to a prison term of 15 years to life for assault on a child causing death. Smith allegedly shook her grandson too vigorously, causing trauma and/or hemorrhaging of the brain and ultimately death. The prosecution’s experts testified at trial that the child likely died from Shaken Baby Syndrome (SBS), while Smith’s experts testified that the physical evidence gleaned from the autopsy was more consistent with other causes of death, including Sudden Infant Death Syndrome (SIDS).
Because there was conflicting evidence, Smith argued that the verdict against her had to be set aside because no rational juror could find beyond a reasonable doubt that she caused the baby’s death. (Proof beyond a reasonable doubt is the standard that the U.S. Constitution requires before someone can be criminally convicted in these circumstances.) The California courts rejected Smith’s claim, saying that jurors were entitled to find the government’s experts persuasive, even as jurors disbelieved the defendant’s experts.
But Smith was able to get the United States Court of Appeals for the Ninth Circuit to agree with her, in what is called a federal habeas corpus proceeding. Federal habeas permits someone who has been convicted in state court to ask a federal court to reexamine the conviction to make sure it complied with federal constitutional guarantees. The Ninth Circuit ruled that, even though deference was owed to the jurors as the weighers of evidence, and also to the California state courts that had upheld the verdict, the result still could not stand. According to the Ninth Circuit, the evidence presented at trial was just too thin and/or too mixed for the federal Constitution to permit criminal conviction.
That was back in 2006. Since then, the state of California has asked the Supreme Court of the United States to reverse the Ninth Circuit a number of times. In two prior instances, the Supreme Court did not directly rebuff the Ninth Circuit, but instead instructed the Ninth Circuit to reconsider its ruling in light of recently decided Supreme Court cases emphasizing the deference owed to state court juries and judges. But both times the Ninth Circuit concluded that its ruling remained correct notwithstanding that deference.
Last week was the third time the Supreme Court weighed in on the case, and this time the Justices simply reversed the Ninth Circuit and said that Smith’s conviction stands, period.
Summary Reversal Practice and Procedure
To be sure, reversals of lower courts by the Supreme Court are not rare events; when it takes a case, the Supreme Court reverses the lower court more often than it affirms. But what makes the Smith case (and cases like it) unusual is that the Court summarily granted review and reversed the federal circuit court’s decision without the benefit of full written briefs and oral arguments.
Ordinarily, review in the Supreme Court is a two-step process. First, a petitioner (the person asking the Court to get involved) files a request for review in the Court, pointing out how important the case is and/or how much uncertainty there is in the legal world concerning the meaning of the laws that are implicated by the case. This first step focuses on the question whether the case is important, not so much the question whether the lower court got it right or wrong.
If the Supreme Court grants review, there is then a second step that occurs. The second step focuses on the correctness of the lower court resolution. Extensive briefs on whether the ruling below was correct are written and filed, oral argument is heard, and then the Court issues a ruling.
In Smith, this second step was omitted; the Court granted the request for review and issued its ruling on the merits in one fell swoop. It did so in an unsigned (“per curiam”) opinion that bore the authorship of no Justice in particular. This “summary reversal” process is something the Court invokes more frequently than it did a generation ago, but summary Court decisions are still done quite rarely (maybe four or five times a year).
Why might the Court have acted so summarily here? And why should it have acted at all, when no important recurring legal question as to which there is need for national clarification was involved?
Distrust of the Ninth Circuit?
Part of the explanation in Smith may be specific to the Ninth Circuit. Although many analysts (myself included) think the Court’s (or various Justices’) apparent attitudes towards the Ninth Circuit are not always fair, the Ninth Circuit does seem to be a particular target of summary reversal practice. This is the fourth straight Supreme Court Term in which the Ninth Circuit has been summarily reversed. In some years over the last decade, the Ninth Circuit has been summarily reversed more than once. And in three of the past ten years (including last week), the very first opinion on the merits by the Court—the leadoff opinion, if you will—has been a summary per curiam reversal of the Ninth Circuit.
Thus, Smith arguably was a potential target for summary reversal simply because it originated from the Ninth Circuit. And things in Smith may have been more personal still. Many people believe (plausibly) that various members of the Supreme Court and/or their clerks are particularly distrustful of particular members of the Ninth Circuit. The fact that the three-judge panel that granted relief to Ms. Smith included Judge Harry Pregerson probably caught the attention of conservative Justices and their clerks; Judge Pregerson and the Court have failed to see eye to eye on criminal matters in a number of earlier cases, and in 1992, in the prominent California death penalty case of convicted murderer Robert Alton Harris, the Supreme Court reversed a stay of execution that had been entered by Judge Pregerson and took the extremely unusual step of saying that no further stays could be entered in Harris’s case by any court other than the Supreme Court.
In sum, various chambers at the Supreme Court may keep a particularly watchful eye on certain lower courts and even on certain lower court judges. But does that justify summary reversal without full briefing and argument?
One Explanation for the Invocation of Summary Procedures: Supreme Court Anger and Frustration
Three dissenters in Smith didn’t think so. Justices Ginsburg, Breyer and Sotomayor thought it was wrong to act to rashly in a case that was very “fact-intensive,” and one where the factual record was so vast and complex, simply “to teach the Ninth Circuit a lesson.” The dissenters thought summary reversal to be particularly unwise where doing full justice to Ms. Smith, who is languishing in prison, might require much more attention than summary consideration permits.
(It is interesting, in this regard, that Justice Kagan—the newest member of the Court and someone who in her first year there often joined the more “liberal” Justices in divisive cases—went with the “conservative” majority in Smith. Perhaps the fact that she was never a lower court judge made her less sympathetic to how lower court judges who are reversed summarily feel, or perhaps her time heading up the Office of the Solicitor General—where the junior lawyers consist largely of relatively recent Supreme Court clerks—led her to internalize certain negative attitudes about the Ninth Circuit.)
Summary reversals also shed light on how little power, under the Constitution, the Supreme Court has to discipline willful lower court judges. The Justices, after all, do not pick lower court judges, or promote them, or determine their salary, and have little control over their individual workloads. In many European countries, there is much greater control within the judiciary itself. In the United States, by contrast, making a lower court look bad by summarily reversing it and publicly calling it out is one of the few things the Supreme Court can do (especially since its small caseload prevents it from taking very many cases in any one year from any single lower court.)
And trying to make the Ninth Circuit look bad is precisely what the per curiam opinion in Smith was attempting to do. At a key point in the opinion, the Court said: “The decision below cannot be allowed to stand.” Notice that this statement is different than one that says simply: “The decision below cannot stand.” The latter formulation would seem to focus on the need to fix the result. The former phrasing focuses on the harm that is done by “allowing” the Ninth Circuit to get away with its misdeed.
If there were any doubt about the Court’s palpable sense of frustration and anger, the next passage from the Smith opinion noted that “twice before” (when the Supreme Court had directed the Ninth Circuit to reconsider), the Ninth Circuit “panel persisted in its course, reinstating its judgment without seriously confronting the significance of the cases called to its attention. . . . Its refusal to do so necessitates this Court’s action today.”
As the dissent confirmed, the majority was “bent on rebuking the Ninth Circuit for what it conceive[d] to be defiance of our prior remands.”
Is Summary Reversal by the Supreme Court the Right Way to Deal With Lower Federal Court Misbehavior?
But even if the Ninth Circuit was, in fact, being defiant (and I take no view on that issue), there are questions about whether summary reversals are the right way to deal with the problem. Ordinarily, as the Smith dissent points out, the Supreme Court sits to clarify questions of law that need clarification, not to perform “error correction” when a lower court has applied clearly settled law incorrectly. And in the Smith case, the Ninth Circuit certainly stated the governing legal principles correctly, whether or not it faithfully and honestly applied those principles to the particular case at hand.
Moreover, again as a general matter, the Supreme Court does not decide matters without full deliberation and an opportunity for complete input by the affected persons. Summary rulings, issued without briefing and oral argument, are more likely to be poorly reasoned and/or poorly crafted (as was true of a summary ruling involving affirmative action I discussed in my last column). So fixing mistakes by way of summary disposition is in many ways a deviation from the Court’s own normal standards of correct and fair process.
That brings us to a bigger question about when it is appropriate for the Supreme Court to disregard its own rules and practices for normal and orderly evolution of law when it perceives the need to undo a lower court’s perversion of legal principle.
We saw this in Bush v. Gore a decade ago, when many of the Justices may have been motivated to make rash, newfangled equal protection law without the benefit of leisurely and thorough briefing because they sensed manipulation of legal principle by the Florida Supreme Court.
We also saw it a few years ago in Hollingsworth v. Perry, where five members of the U.S. Supreme Court (to my mind, inconsistently with the Court’s own procedural rules) intervened, again without full briefing or argument, to forbid a district court judge from broadcasting on closed-circuit TV the proceedings in the same-sex-marriage Proposition 8 trial in San Francisco, because the Court perceived the lower court judge as having manipulated his own procedures. And, perhaps, we saw it again in Smith.
Maybe it’s time for the Court and Court watchers to have a fuller airing of their various views as to when summary or other procedurally truncated dispositions should, or should not, be used to help the Court vent when it feels disrespected by lower courts.