Two months ago, I had a few posts on the Supreme Court’s decision in Salinas v. United States, a per curiam summary reversal involving what Supreme Court geeks call “error correction” – a very rare decision by the Supreme Court to take a case only because it looks like the lower court goofed, even if the case has no particular importance for the shape of the law. I wrote:
As a general rule, the chances that the Supreme Court will step in for a case like this are extremely low. Even if the lower court erred, the error did not raise an important question, and the lower court’s decision has no precedential value. The lower court decision was unpublished; the issue was plain error; the outcome of the appeal may not hinge on this issue; and the stakes for the petitioner were relatively low in the grand scheme of things. The Supreme Court has limited resources, and usually lets this sort of error pass uncorrected. Nonetheless, the Supreme Court reversed, pointing out the error and sending the case back to the Fifth Circuit.
Does Salinas signal a new interest from the Roberts Court in correcting errors by lower courts via brief per curiam opinions? I’m not sure, but it’s possible.
The latest data point on this question is yesterday’s opinion in Youngblood v. West Virginia. Youngblood was charged with sexual assault and claimed that the sexual act was consensual. Following his conviction, he filed a motion for a new trial on the ground that he obtained a note allegedly from the victim suggesting that the act was consensual and therefore that he was not guilty. According to Youngblood, a police officer was shown the note and told the person who showed it to him to destroy it. Youngblood moved for a new trial on the ground that the note was newly discovered evidence and the failure to disclose the note to Youngblood before the trial violated the government’s disclosure obligations under Brady v. Maryland. The trial court held an evidentiary hearing and denied the motion for a new trial for newly discovered evdience, but did not bother to address the Brady question. The Supreme Court of Appeals of West Virginia affirmed, giving a cursory look at the newly discovered evidence claim but (like the trial court) not even addressing the Brady issue.
A six-Justice majority of the Supreme Court vacated the lower court decision and remanded, telling the state courts to go back and address the Brady issues on the record. Here is the entirety of the Court’s analysis:
If this Court is to reach the merits of this case, it would be better to have the benefit of the views of the full Supreme Court of Appealsof West Virginia on the Brady issue. We, therefore, grant the petition for certiorari, vacate the judgment of the State Supreme Court, and remand the case for further proceedings not inconsistent with this opinion.
Justices Scalia, Thomas, and Kennedy dissented. Scalia’s dissent pointed out how odd the Court’s course of action was in light of the Court’s traditions and practices:
Here, the Court vacates and remands in light of nothing.
Instead, the Court remarks tersely that it would be“better” to have “the benefit” of the West Virginia court’s views on petitioner’s Brady claim, should we eventually decide to take the case. Ante, at 3–4. The Court thus purports to conscript the judges of the Supreme Court of Appeals of West Virginia to write what is essentially an amicus brief on the merits of an issue they have already decided, in order to facilitate our possible review of the merits at some later time.
The obvious question is, what is going on? Note the common theme with Salinas. In both cases, prior courts did a remarkably cruddy job handling the legal issues a defendant had raised in his briefs, and the Supreme Court sent back the case for a do-over.
I can think of a few possible explanations. My own pet theory is that Chief Justice Roberts thinks that some lower courts are being sloppy in criminal cases: He wants to pressure them to be more careful by sending a signal that the Supreme Court is watching. Alito is on board, notably, which brings to mind Howard Bashman’s claim from 2003 that “Judge Alito cares much more for the ‘little guy’ than do any of the nine Justices currently serving on the Court.” Together with the four more liberal Justices, you get a six-Justice majority in favor of picking out a few cases to put pressure on lower courts to be more careful in criminal cases.
Of course, time will tell if that’s right; it may just be a fluke, or there may be quirky reasons on the inside why the Court took the action it did. But it’s certainly one for Court-watchers to follow.
Finally, it’s worth responding to Doug Berman’s interesting reaction to Youngblood at Sentencing Law and Policy. Doug writes:
The many narrow opinions and the slow pace of cert grants has led me to believe that the Roberts Court was eager to effectuate the “passive virtues” famously championed by Alexander Bickel. But as Justice Scalia highlights in his Youngblood dissent, the Court’s GVR in Youngblood does not seem so passive. And yet, both CJ Roberts and Justice Alito (a purported Bickel fan) are the key swing votes forming a majority for the GVR.
My reaction is almost exactly the opposite of Doug’s. As I see it, the Youngblood case is consistent with Bickel’s approach in the most important sense: It makes no new law. There is no real holding in Youngblood; the Court exercised its power of review without actually deciding the case. As I understand it, Bickel’s “passive virtues” refers to the reluctance to decide cases on broad substantive grounds if narrow procedural grounds exist to decide it. If that’s right, the Youngblood case seems pretty Bickelish to me.