83. When Should the Court Go First?

When a lower court used the wrong legal standard, when should the justices remand to apply the right one versus applying it themselves? That was the key dispute in last Thursday's ruling in Thornell

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday (including holidays, like today), I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

This week’s issue was prompted by one of the Court’s three decisions in argued cases last Thursday: Thornell v. Jones. The specific issue before the Court is the specific burden a convicted prisoner must meet before showing that he received “ineffective assistance” from his trial counsel in violation of the Sixth Amendment. But the (to me) more interesting issue is whether, once eight justices clarified that the Ninth Circuit applied the wrong standard, it should’ve sent the case back to the lower courts (which two justices argued for) or applied the new standard themselves (what the other six did). It’s another flashpoint for an ongoing debate about whether/when the Court is and should be a “Court of first view” versus a “Court of review.”

But first, the (other) news:

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On the Docket

Last Monday’s regular Order List was relatively tame, with only one new case added to the merits docket for next term (a modest environmental law dispute between the City of San Francisco and the EPA); and one published opinion respecting a denial of review (Justice Gorsuch’s dissent from the Court’s refusal to take up a dozen Florida cases challenging the constitutionality of that state’s utilization of six-person juries in criminal cases). The grant brings the total number of cases for next term to nine—just under half of the grants we had heading into June last year (which itself was historically low). If the Court wants to fill its fall argument calendars before rising for its summer recess, it better get busy…

Almost all of the other news came Thursday. First, the Court handed down three more opinions in argued cases, only one of which counts (sort of) as one of the “major” cases for which we’re still waiting:

1. In Cantero v. Bank of America, the Court considered a conflict between a New York law, which requires banks to pay interest on escrow accounts for mortgage loans, and federal law, which doesn’t. The Second Circuit held that federal law preempts the New York escrow requirement as applied to “national” banks like BofA, because the state law “would exert control over” national banks’ power “to create and fund escrow accounts.” For a unanimous Court, Justice Kavanaugh held that the Second Circuit had applied the wrong test for preemption, and, after articulating the right test (which takes a narrower view of when federal bank laws preempt state bank laws like New York’s), sent the case back for the lower courts to apply the right test in the first instance.

2. In Nat’l Rifle Ass’n v. Vullo, Justice Sotomayor wrote for a unanimous Court in reviving a lawsuit by the NRA claiming that a New York state official violated the First Amendment by coercing entities that her department regulated to punish or suppress the NRA’s gun-promotion advocacy. The Court held only that the NRA had “plausibly alleged” that the New York official had engaged in unconstitutional viewpoint discrimination, sending the case back to the lower courts to decide if she actually engaged in such discrimination (and, if so, whether she might nevertheless be immune from the damages the NRA is seeking). The narrow ruling helps to explain its unanimity. But what’s also interesting is how neither the majority opinion by Justice Sotomayor nor the short, separate concurrences by Justices Gorsuch and Jackson so much as mentioned Murthy v. Missouri—in which very similar claims about coercive government speech are at issue (indeed, the two cases were argued on the same day in March). For those, like me, who think that the Court is going to get rid of Murthy by holding that the plaintiffs don’t have standing, its non-mention here (and the fact that they weren’t handed down on the same day) is at least some support for that thesis.

3. Finally, in Thornell v. Jones, the Court split along traditional ideological lines in reversing a grant of post-conviction relief to an Arizona death-row prisoner based upon his claim that his trial lawyer had provided constitutionally ineffective assistance. Justice Alito wrote the majority opinion, holding that the Ninth Circuit had applied the wrong test by failing to give adequate weight to the other aggravating evidence in Jones’s case. Rather than allow the lower court to apply this clarified standard on remand (as in the first two decisions on Thursday), the majority went on to apply it and hold that, on the merits, Jones couldn’t win—because, in its view of the evidence, the jury would’ve convicted even if Jones had received adequate representation). In her dissenting opinion, Justice Jackson disagreed that the lower court had applied the wrong standard. Justice Sotomayor, in contrast, in a dissenting opinion joined by Justice Kagan, agreed that the Ninth Circuit’s standard was too generous, but disagreed with the majority’s decision to apply the new standard itself.¹

Just to do some math, that brings the Court to 29 opinions covering 30 argued cases to this point, with somewhere between 29 and 31 opinions covering 35 argued merits cases and the “Good Neighbor” ozone pollution emergency applications still to go.

Later on Thursday, Chief Justice Roberts issued a brief letter of his own, declining a request from the Chair of the Senate Judiciary Committee, Senator Dick Durbin (D-IL), and Senator Sheldon Whitehouse (D-RI) to meet with them to discuss the Alito flag situation. Almost copy-and-pasting from his April 2023 letter declining to testify about the justices’ ethics, Roberts warned that “only on rare occasions in our Nation’s history has a sitting Chief Justice met with legislators, even in a public setting (such as a Committee hearing) with members of both major political parties present. Separation of powers concerns and the importance of preserving judicial independence counsel against such appearances.”

Finally, the Court denied, with no public dissents, a pair of emergency applications from Alabama death-row inmate Jamie Mills, unsuccessfully seeking to block his impending execution.

As of now, this week is set to follow a pretty similar script. We expect a regular Order List at 9:30 ET today, and one or more opinions in argued cases Thursday at 10 ET. For those keeping score at home, the longest outstanding decisions are the two remaining cases from the November argument session, one about the “Trump too small” trademark; and the Rahimi Second Amendment/domestic violence case.

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The One First “Long Read”: A Court of First View?

Long-time readers may recall that, in one of the first issues of this newsletter, I wrote about the phenomenon of the Supreme Court in recent years increasingly deciding factual and legal questions before any lower court had done so (as opposed to deciding those questions differently), and how those decisions fly in the face of the justices’ own insistence that theirs is “a court of review, not first view.” Beyond the hypocrisy, there are some real costs when the justices, who are not trial judges,² go out of their way to decide in the first instance factual or legal questions not resolved (and sometimes, not even briefed) below—especially, as has been true in recent years, when cases are reaching the Court in interlocutory (i.e., non-final) postures, where parties and lower courts haven’t even had an opportunity to reach and resolve those issues.

Such short-circuiting of ordinary legal process may, among other things, lead the justices to rely upon outside facts or legal arguments beyond what the parties have had an opportunity to develop; they may deprive the parties of a full opportunity to argue the merits (and thus prevent “percolation” of the relevant factual or legal issues); and they may, through both of those, increase the risk that the justices themselves get either the facts or the application of the new legal standard to them wrong. Indeed, all of the justices have stressed, at one point or another, that full development of factual and legal issues makes their decisonmaking both easier and more accurate.

The point is not that there are never reasons for the justices to go first; it’s easy enough to think of historical contexts in which the exigency of the situation was such that there was every reason for the justices to resolve the entire dispute. Rather, the more modest objection is that the Court ought to be thinking carefully about when it does and doesn’t make sense to resolve matters of first impression itself, and to explain why it’s doing so in the rare cases in which it does. (The full-length version of that argument is due out in the Harvard Law Review this December.)

Thursday’s decision in Thornell is a textbook example of both the phenomenon and the problems it can cause. Eight justices agreed that the Ninth Circuit’s approach to ineffective assistance of counsel in a capital trial paid insufficient attention to the presence of significant aggravating factors—which could weigh quite heavily against any argument that a trial lawyer’s incompetence caused the constitutionally required “prejudice.” But rather than return the case to the court of appeals to apply the correct standard (as the Court did in both of the two other cases decided on Thursday), the six Republican appointees went out of their way to do the work themselves—holding, on the merits, that Jones could not satisfy even the more rigorous standard.

As Justice Sotomayor put it in her dissent, “The record in this case is complex, contested, and thousands of pages long. In light of this ‘extensive record’ and ‘intricate procedural history, . . . this is not an appropriate case to reach and settle [a] fact-sensitive issue.’ That is particularly true when, as here, the majority in the first instance parses a complex record containing contested medical diagnoses and disputed allegations of abuse and trauma.” In other words, not only did the majority fail to explain why it was going out of its way to reach the merits in this case; there were good reasons not to do so.

Beyond the more general point about how the Court ought to both have and publicly articulate special justifications before reaching out to decide matters not decided below, Thornell seems to highlight three additional concerns: First, reaching the merits in lieu of remanding looks especially awkward when the Court decides three cases on the same day, and in the first two, it follows its usual practice of remanding for lower courts to apply a new standard in the first instance. Second, that disconnect seems all the more problematic when the one case in which the majority goes further is the only one of the trio in which the justices divided along ideological grounds (and the lower court being slapped-down is the Ninth Circuit, not the Second Circuit). Third, if one assumes, as I think is fair, that it consumes time and resources for the Court to reach the merits (especially in a case like this), then it also seems worthy of comment that the Court did so in Thornell even as it is quite a bit behind in its other work (e.g., deciding the other 35 cases on its docket and/or adding cases for next term). Simply put, one can think that the majority reached the correct bottom-line result in this case and still think that it was unnecessary and perhaps even inappropriate for it to do so, especially given all of the other cases (like Cantero and Vullo) in which it doesn’t.

There’s a rich debate to be had about when the Supreme Court should reach out to resolve factual or legal issues that weren’t decided below. And there are good arguments on both sides in the abstract. But the relevant point for present purposes is that the current Court is, if nothing else, inconsistent in when it does so—in ways that, as in Thornell, give off at least the appearance that ideological motivation has something to do with it. The justices could easily insulate themselves against this charge by committing to explaining why they’re reaching out to decide the merits at an interlocutory stage of an appeal (here’s an example of a 2008 opinion doing exactly that). When they don’t, as in cases like Thornell, I fear that it only reinforces the appearance, if not the reality, that the justices’ selective behavior, and its insistence that it is “a court of review, not first view,” has ideological undertones.

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SCOTUS Trivia: June Birthdays

Two of the justices celebrate birthdays in June: Justice Thomas will turn 76 on June 23; Justice Sotomayor will hit 70 two days later. It turns out that six of the justices were born in the same three months; Chief Justice Roberts and Justice Barrett were both born in January; and Justices Alito and Kagan were both born in April. Only Justices Kavanaugh (February), Gorsuch (August), and Jackson (September) have months to themselves.

I could give you data on total birthdays-by-month across the Court’s history, but, well, life is short. Maybe another time.

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Until then, happy Monday, everyone. I hope that you have a great week!

1. For the two of you wondering why Sotomayor’s opinion was thus styled as a “dissent,” rather than an opinion “concurring in the judgment,” my best guess is that, because the judgment was to “reverse” the Ninth Circuit, rather than to “vacate” its decision and remand, Sotomayor was still dissenting from that specific judgment.

2. Indeed, only two of the justices—Sotomayor and Jackson—have ever spent any time as trial judges.