The Supreme Court's ruling in Zorn v. Linton illustrates the pathologies of both its current approach to qualified immunity doctrine and its willingness to resolve appeals in such cases summarily.
FWIW, the (entirely correct) point about the lack of bottom side amicus briefs in summarily reversed cases carries an implication that is probably uncomfortable to much of the SCOTUS bar. Which is, there are way too many amicus briefs and the role they play in the Court's decision-making is way too undefined.
For instance, this whole practice of not filing bottom side amicus briefs at the cert stage is obviously premised, as Prof. Vladeck says, on the idea that if a case gets a lot of amicus attention it will look "important". But if that is actually what is deciding cert petitions that is really bad! The cert standard shouldn't be (and officially isn't) "how many well funded interest groups and law professors care about the case?". If everyone just assumes the Court is violating that and counting up the amicus briefs, that's a bigger problem than the occasional summary reversal.
Indeed, one problem with the modern Court Prof. Vladeck doesn't focus on is that it simply loves culture war "salient" cases. It isn't merely that the Court is taking less cases (though it is)-- it's that the cases it is taken are dominated by the type of cases that generate online and media discussion and that law professors and groups endlessly want to talk about. If you have a boring business case with a circuit split, you are generally screwed. And amicus practice, if it affecting cert grants, makes this worse.
This is on top of the fact that a lot of amicus merits briefs are just utter crap. They mostly add nothing. For every Marty Lederman interpreting when the Guard may be deployed, there's at least 20 briefs filed soley to generate donations or make lawyers or law professors feel the ego gratification of having filed a brief in a big case.
Bottom line, amicus practice is probably making SCOTUS worse, not better, overall, and SCOTUS should probably make it very hard to file one unless there is something truly new to say (and they maybe should be banned entirely for either side at the cert stage).
"But they still produce an “opinion of the Court,” one that the current Court treats as having comparable precedential effects to rulings it hands down after plenary review."
Well, if you consider this Court's attitude towards precedent, that ought to amount to roughly nothing - if there were any consistency about it, which is clearly a counter-factual proposition.
Does Congress have any role or ability to reign in the court and its use of the shadow docket? Or does this require some type of constitutional reform?
Does Villarreal have a chance to challenge the constitutionality of the Texas Penal Code they were charged with? [apparently Ann. §39.06(c)]
I read part of the 5th circuit second ruling and was surprised to read that Oldham, of all people, almost seeming to question if qualified immunity has gone too far. Note only that, he cited Thomas:
<<Although many have treated qualified immunity as a “one-size-fits-all doctrine,” Hoggard v. Rhodes, 141 S. Ct. 2421, 2421 (2021) (Thomas, J., respecting denial of certiorari), Justice Thomas has recently questioned whether the logic undergirding qualified immunity is equally implicated in all cases involving official conduct. Officers “exercise a wide range of responsibilities and functions.” Ibid. And courts “have never offered a satisfactory explanation” for why qualified immunity should apply the same way across the board. Id. at 2422. I share Justice Thomas’s concerns.>>
Which raises the question - if the "trend" continues, where will QI end up?
Will the SCOTUS eventually find a case to clarify things?
When it does, is it likely to use that chance to limit its ever growing scope? Or would that require a court with a different composition, which might drastically roll back QI?
It's too bad the Court did not see fit to apply the the same cautious federal common law rule of not making things up to the question of Presidential immunity from criminal prosecution.
Personally, as a Vermont resident, I feel that anyone who wants to sit down in protest on the steps of the State House should be allowed to stay there unsupported until they die from exposure or dehydration. that's their constitutional right. And it is patently evident that your average police officer is capable of maiming a 150 pound woman engaged in passive nonviolent protest by dragging her across the lawn to a waiting cruiser in a wrist lock just as sure as I can break a roast chicken wing. Perhaps the need to resort to such means of applying excessive force is occasioned by the General Assemply's unwillingness to appropriate sufficient funds for an adequately staffed Capital police force or state police of sufficient strength and numbers to carry away a sack of potatoes. But hopefully, this summary reversal on petition for certiorari of the 2nd Circuit's finding of no legal error in the matter by the Federal Court for the District of Vermont will result in no permanent harm to anyone on remand. It is not clear from the article how deep in to those weeds the Court has ventured.
"takes six votes to agree to summary adjudication"
What if four grant cert and then five decide to rule without oral argument? Once they grant cert, can five accelerate the process?
Anyway, Congress should regulate the docket to limit the justices' ability to do what they did here. It basically involved itself in a narrow intracircuit matter. I set aside the broader need for reforming qualified immunity. Which should also be addressed.
Democrats need to gain control of the government & reform the courts. Court expansion should be used as a pressure tactic to, at the very least, obtain other reforms. Major changes are necessary.
FWIW, the (entirely correct) point about the lack of bottom side amicus briefs in summarily reversed cases carries an implication that is probably uncomfortable to much of the SCOTUS bar. Which is, there are way too many amicus briefs and the role they play in the Court's decision-making is way too undefined.
For instance, this whole practice of not filing bottom side amicus briefs at the cert stage is obviously premised, as Prof. Vladeck says, on the idea that if a case gets a lot of amicus attention it will look "important". But if that is actually what is deciding cert petitions that is really bad! The cert standard shouldn't be (and officially isn't) "how many well funded interest groups and law professors care about the case?". If everyone just assumes the Court is violating that and counting up the amicus briefs, that's a bigger problem than the occasional summary reversal.
Indeed, one problem with the modern Court Prof. Vladeck doesn't focus on is that it simply loves culture war "salient" cases. It isn't merely that the Court is taking less cases (though it is)-- it's that the cases it is taken are dominated by the type of cases that generate online and media discussion and that law professors and groups endlessly want to talk about. If you have a boring business case with a circuit split, you are generally screwed. And amicus practice, if it affecting cert grants, makes this worse.
This is on top of the fact that a lot of amicus merits briefs are just utter crap. They mostly add nothing. For every Marty Lederman interpreting when the Guard may be deployed, there's at least 20 briefs filed soley to generate donations or make lawyers or law professors feel the ego gratification of having filed a brief in a big case.
Bottom line, amicus practice is probably making SCOTUS worse, not better, overall, and SCOTUS should probably make it very hard to file one unless there is something truly new to say (and they maybe should be banned entirely for either side at the cert stage).
I agree with much of this; the Court could do itself a lot of favors if it imposed more limits on amicus briefs, but it's too worried about the costs.
I'll just note that I've made the culture-war point elsewhere:
https://www.stevevladeck.com/p/71-murthy-v-missouri-as-a-microcosm
Hmm, accountability avoidance seems to have become quite the rage in right wing America.
"But they still produce an “opinion of the Court,” one that the current Court treats as having comparable precedential effects to rulings it hands down after plenary review."
Well, if you consider this Court's attitude towards precedent, that ought to amount to roughly nothing - if there were any consistency about it, which is clearly a counter-factual proposition.
Does Congress have any role or ability to reign in the court and its use of the shadow docket? Or does this require some type of constitutional reform?
Does Villarreal have a chance to challenge the constitutionality of the Texas Penal Code they were charged with? [apparently Ann. §39.06(c)]
I read part of the 5th circuit second ruling and was surprised to read that Oldham, of all people, almost seeming to question if qualified immunity has gone too far. Note only that, he cited Thomas:
<<Although many have treated qualified immunity as a “one-size-fits-all doctrine,” Hoggard v. Rhodes, 141 S. Ct. 2421, 2421 (2021) (Thomas, J., respecting denial of certiorari), Justice Thomas has recently questioned whether the logic undergirding qualified immunity is equally implicated in all cases involving official conduct. Officers “exercise a wide range of responsibilities and functions.” Ibid. And courts “have never offered a satisfactory explanation” for why qualified immunity should apply the same way across the board. Id. at 2422. I share Justice Thomas’s concerns.>>
Which raises the question - if the "trend" continues, where will QI end up?
Will the SCOTUS eventually find a case to clarify things?
When it does, is it likely to use that chance to limit its ever growing scope? Or would that require a court with a different composition, which might drastically roll back QI?
Thanks for the newsletter!!
It's too bad the Court did not see fit to apply the the same cautious federal common law rule of not making things up to the question of Presidential immunity from criminal prosecution.
Personally, as a Vermont resident, I feel that anyone who wants to sit down in protest on the steps of the State House should be allowed to stay there unsupported until they die from exposure or dehydration. that's their constitutional right. And it is patently evident that your average police officer is capable of maiming a 150 pound woman engaged in passive nonviolent protest by dragging her across the lawn to a waiting cruiser in a wrist lock just as sure as I can break a roast chicken wing. Perhaps the need to resort to such means of applying excessive force is occasioned by the General Assemply's unwillingness to appropriate sufficient funds for an adequately staffed Capital police force or state police of sufficient strength and numbers to carry away a sack of potatoes. But hopefully, this summary reversal on petition for certiorari of the 2nd Circuit's finding of no legal error in the matter by the Federal Court for the District of Vermont will result in no permanent harm to anyone on remand. It is not clear from the article how deep in to those weeds the Court has ventured.
"takes six votes to agree to summary adjudication"
What if four grant cert and then five decide to rule without oral argument? Once they grant cert, can five accelerate the process?
Anyway, Congress should regulate the docket to limit the justices' ability to do what they did here. It basically involved itself in a narrow intracircuit matter. I set aside the broader need for reforming qualified immunity. Which should also be addressed.
Democrats need to gain control of the government & reform the courts. Court expansion should be used as a pressure tactic to, at the very least, obtain other reforms. Major changes are necessary.