The new U.S. Supreme Court term started up last week. Scores of cases that have been pending all summer before the court were denied. Last Friday’s decision to hear an abortion case, as well as the court already having agreed to hear, among others, gun rights and LGBTQ discrimination cases, has many observers speculating that the court is on the verge of upending vast swaths of its own precedent. If the predictions hold, the court will face withering criticism and public skepticism, damaging its public image.
One way the court could burnish its image as being committed to its own precedents and acts as a neutral arbiter would be to enforce its precedents — to make sure its precedents are being followed. It should especially do so where people’s lives are at stake. Surprisingly, the suggestion is apt because it is not something the court presently undertakes with any regularity.
Although it is true that in nearly every case the Supreme Court applies its own precedents as it reasons through the question before the court, in rare cases the Supreme Court doesn’t do exactly that. In those rare cases, the court is most often overruling prior precedent.
But by “enforce” the court’s precedents, I mean the court should undertake what it now disparagingly calls “error correction.” It used to be that the Supreme Court would accept writ of error review to ensure the rule of law.
My radical proposal is this: Where a state court misapplies — or even cites and then ignores — Supreme Court precedent, the Supreme Court should grant review and reverse.
Attorneys seeking review before the Supreme Court have been advised not to seek “correction of errors” since at least the 1950s when Chief Justice Fred M. Vinson spoke on the subject and after abolition of the writ of error. In a speech to the American Bar Association, the chief justice declared that it was the primary undertaking of the court to “resolve conflicts of opinion on federal questions that have arisen in the lower courts, to pass upon questions of wide import under the Constitution, law, and treaties of the United States, and to exercise supervisory power over the lower federal courts.” Chief Justice Vinson’s vision is embodied in the Supreme Court’s rules, which advise that a case will “rarely” be heard if the decision below merely consists of “misapplication of a properly stated rule of law.”
This need not be so. It was not until the middle of the 20th century that Chief Justice Vinson’s view came to dominate, wholly abandoning the Supreme Court’s role embodied in reviewing writs of error. And adopting that view has left states free to gut many of the Supreme Court’s precedents. In capital cases, this has meant scores of inmates have been executed between the court announcing a rule and it actually enforcing that rule against a particular outlier state.
Take three recent examples. In 1994, the Supreme Court held that where the two sentencing options are life without the possibility of parole or death, it is error to prevent the jury from learning that the defendant will be parole ineligible. Even though Arizona abolished parole in 1994, effectively leaving only two sentencing options, it was not until 2016, that the Supreme Court decided that Arizona’s defiance of that precedent merited correction. In the meantime, 34 people were executed in Arizona.
Florida provides another apt example: In 2002, the Supreme Court held that a jury, not a judge, must find every fact that renders a defendant eligible for a sentence of death. Yet it was only in 2016, that the Supreme Court held that Florida’s decision to leave those questions to a judge violated the Sixth Amendment right to a jury trial. Florida executed 41 people between these two decisions. Finally, in 1987, the Supreme Court held that it violates the Eighth Amendment to allow a victim impact witness, in a death penalty case tried to a jury, to ask for a particular sentence or to characterize the defendant the crime. Nonetheless, it was not until 2016 that the Supreme Court intervened to stop Oklahoma from allowing precisely this. In the meantime, Oklahoma executed 113 people.
None of these three cases presented “conflicts of opinion” among the lower courts. Each of these cases involved a lower court that was able to quote the appropriate rule in the very decisions it was defying. And in the decades it took for the Supreme Court to get around to correcting these errors, 188 people were executed.
Deciding these cases sooner may have saved dozens of lives. Reinvigorating its largely moribund appellate role would bolster the Supreme Court’s influence and status in an era in which both are hurting. Instead of sidestepping the Supreme Court’s precedents, the lower courts would be more inclined to breath life into them. Error correction cases also often have the benefit of being unanimous, or nearly so. The above examples, all capital cases, garnered a dissent from Justices Clarence Thomas and Samuel Alito, the high court’s two most ardent conservatives. Accepting a greater number of error correction cases will bring number of cases demonstrating consensus, the public will see the court enforcing the Constitution and its precedents in an apolitical manner.
The Supreme Court has the bandwidth to do this. It’s true that more people than ever are seeking its intervention. But it’s also true that the court is hearing the merits of historically low numbers of cases. This is at the same time that an enormous portion of our population is incarcerated — giving rise to strong motivation to seek federal court intervention — and that the Supreme Court has its largest, most professionalized staff and bar. The court could do more to protect the rule of law and thereby burnish its image in the public mind.
Image management concerns aside, when issues of life and death are before the Supreme Court, and state courts are defying the high court’s precedents, hearing the case is the appropriate response. Unanimously correcting more errors in capital cases would provide an excellent opportunity for the Supreme Court to demonstrate its ability to enforce constitutional protections, even on issues as contentious as capital punishment.