First off, thanks to Eugene for making me a cameo this week.If you want to know more about The origin of the Supreme Court’s choice of questionssee full text.
The story I’ve told this week shows that the courts’ practice of pre-selecting questions for review assumes powers that neither Congress nor the common law provide. Instead, the justices held power themselves, even as they assured Congress they would not. So how to justify this practice?
The best argument might be that it helps the court do its job. This is a functionalist argument even if we set aside the broader discussion of what the job of the court is or should be. The problem is that when the text and history are clear, the justices, especially conservatives on the Roberts court, don’t really seek out functionalist arguments. Consider a few examples:
SAS Institute, Inc. v. Iancu The scope of multi-party examination involving patent offices. To begin the process, one party challenges a previously issued patent by filing a petition. The petition must identify “the peculiarities of each challenged claim.” If the Administrator determines that multi-party examination is appropriate, the final outcome of the examination is “a final written determination as to the patentability of any patent claims challenged by the petitioner.”The court considered whether the patent office must “solve all claims in the case, or may choose to limit their review to Some them. “The court said the patent office must answer all questions.
Most people compared the two parts of the relevant legislation. A part needs to be determined”any The patent claims were challenged by the petitioners. “Another gives the director the power to investigate individual issues. Looking at different language, the court asserts, “If Congress wants to give the director [power to choose what questions to answer], it knows exactly how to do it – it can simply borrow the regulations next door. “
The language is very clear. The director can make a “binary choice – either college review or no review”.Most reasoned that although the statute “gives the director discretion on the issue regardless review, it does not mean that the statute gives him discretion in what Review the statement that will be covered. “
The court dismissed the director’s argument that allowing him to choose important issues “is effective because it allows the board to focus on the most promising challenges and avoid spending time and resources on others.”[p]The court said the “controversial arguments” were “properly presented to Congress.” Further, “[t]The director may (today) think his approach contributes to better policy, but when the words on the page are clear, policy considerations do not create ambiguity. “In the end, the court ruled that”[n]Anything that shows the Commissioner is entitled to leave the petition and enact different …to review his own designs. “
It’s hard to read the language, and it’s hard to think of similar contrasting language in the statute governing the court’s transfer jurisdiction. The statute connects certiorari to the case and certification to the problem. If Congress wanted to give the court referral jurisdiction over an issue, it knew exactly how to do it—it could simply borrow from the same section. Congress gives courts “discretion as to whether to conduct a review, but it does not mean that the statute gives” judges “discretion as to which claims will be covered by the review.”There may be policy arguments for allowing courts to pre-select important issues “because it allows [the Court] Focus on the most promising challenges and avoid spending time and resources on other challenges. “But are these “policy issues… properly raised with Congress”? The court may consider its current approach “contributes to better policy, but policy considerations cannot create ambiguity when the words on the page are clear.” “
Yanku Deal with the administrative state, but the courts also have little time for functionalist arguments from the circuit courts.exist BP PLC v. Mayor of Baltimore, Baltimore sued multiple energy companies in state court, and the defendants moved the case to federal court. Baltimore presented eight grounds for expulsion, one of which cited 28 USC § 1442(a)(1). The district court dismissed all eight and sent the case back to state court. The defendant appealed.
Normally, a remand order is not appealable, but under the Removal Clarification Act, an “order” is appealable if the case is dismissed under § 1442. The Fourth Circuit limited its review to Section 1442 claims and affirmed them. The Supreme Court approved the cassation paper and quashed it.
Judge Gorsuch’s opinion condemned the lower court for reviewing only one issue rather than the entire case. Gorsuch looked up “order” in Black’s Law Dictionary, which defines it as “a written instruction or order issued by a… court or judge.” Thus, the appropriate scope for appellate review is an instruction or order, not just an answer to a specific § 1442 question.
Note, however, that the court has transfer jurisdiction over “final judgments and orders” of state and district courts. The final verdict is “[a] The court’s final ruling on the rights and obligations of the parties to the case. “Courtesy of course should review “judgments” (let alone “cases”) no less than orders.
2. Actual cases heard by the court BP, according to the court, contains at least eight questions: eight grounds for removal. The court accused the Fourth Circuit of limiting review to one of those eight issues.Court of Appeal held that review of remand order should consider each part of the order, court declined to consider any The applicant’s reasons for deportation. It also did not give Baltimore a chance to defend the following sentence on all the grounds on the record. So why not? Because doing so “would not imply a split in the circuit we resolved through this case.”
This does sound like a functionalist argument. Baltimore tried this in this case, arguing that limiting scrutiny to Section 1442 issues would help improve efficiency goals. The court did not bite. It explains, “‘[e]Even the strongest ‘policy arguments’ cannot ‘overcome’ clear statutory mandates. “
Simultaneously Yanku and BP, the court forced policymakers to review the entire case because that’s what the statute said. Most people don’t have time for functionalist arguments because the text and history are clear. I’m happy to assume the courts are correct on these questions, but for the life of me I don’t know how they would compare any of them to their own practice of pre-selecting questions on certiorari.