Golden Gate University Law Review Volume 42 Article 6 Issue 1Ninth Circuit Survey January 2012 Court of Appeals Dynamics in the Aftermath of a Supreme Court Ruling Stephen L. Wasby Follow this and additional works at:http://digitalcommons.law.ggu.edu/ggulrev Part of theJudges Commons, and theOther Law Commons Recommended Citation Stephen L. Wasby,Court of Appeals Dynamics in the Aftermath of a Supreme Court Ruling, 42 Golden Gate U. L. Rev. (2012). http://digitalcommons.law.ggu.edu/ggulrev/vol42/iss1/6 This Article is brought to you for free and open access by the Academic Journals at GGU Law Digital Commons. It has been accepted for inclusion in Golden Gate University Law Review by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. Wasby: Inter-Court Dynamics ARTICLE COURT OF APPEALS DYNAMICS IN THE AFTERMATH OF A SUPREME COURT RULING STEPHENL.WASBY* INTRODUCTION Examinations of the relationship between the U.S. Supreme Court and the U.S. courts of appeals usually look “down” at the impact of * B.A., Antioch College; M.A., Ph.D. (political science), University of Oregon. Professor Emeritus of Political Science, University at Albany—SUNY. Residing in Eastham, Mass. Contact: [email protected]. The author wishes to express his appreciation to Ninth Circuit Senior Judge Alfred T. Goodwin for access to his papers and the case files on which this Article is based, as well as his comments on an earlier draft of this Article, and to Virginia Hettinger, University of Connecticut, for raising useful questions. An earlier version of this Article was presented to the American Political Science Association, Washington, D.C., Sept. 5, 2010. The author’s interest in the border-search cases goes back at least to the late 1970s, when one of his students at Southern Illinois University—Carbondale, Michael Wepsiec (now States Attorney for Jackson County, Illinois), conducted an honors study of cases involving the “founded suspicion” necessary for a stop in border searches. The work is reported in Michael Wepsiec & Stephen L. Wasby, Ninth Circuit Border Searches: Doctrines and Inconsistencies (2000) (unpublished manuscript) (on file with author). The reader should note that the author reviewed the Goodwin Papers while conducting research for this Article; the unpublished documents cited here are available in the Goodwin Papers, which are held at the Oregon Historical Society, Portland, Oregon. The author has made every effort to ensure the accuracy of citations to, and quotations from, those documents, but the author notes that the editors of the Golden Gate University Law Review have not had the opportunity to review the documents from the Goodwin Papers cited or referred to here. Unpublished dispositions were read in slipsheet form—the only form in which they made available during the period studied—at the Ninth Circuit headquarters courthouse in San Francisco. Unless otherwise specified, all those named as senders or recipients of memoranda are or were judges of the U.S. Court of Appeals for the Ninth Circuit. “Associates” refers to all the judges of the court. 5 Published by GGU Law Digital Commons, 2012 1 Golden Gate University Law Review, Vol. 42, Iss. 1 [2012], Art. 6 6 GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 42 single Supreme Court decisions on subsequent lower court rulings; not even the related cases the Justices dispatch with grant-vacate-remand (GVR) orders are taken into account. The implicit assumption seems to be that the relationship is both direct and simple, with later lower-court rulings embodying the substance of the Supreme Court’s opinion. Matters are, however, far from being quite so simple. A Supreme Court ruling, particularly if not unanimous, may require interpretation. In addition, more than one Supreme Court case may be simultaneously in play, cases may also be moving between the two courts, and cases likely will be at various stages in the appellate process at the time of the Supreme Court’s primary ruling. This sets up a dynamic situation. Studies of the effects of the U.S. Supreme Court on lower federal courts usually focus on outcomes (affirm or reverse) and, to a lesser extent, on whether lower courts’ opinions reflect or are out-of-sync with the Supreme Court. The effect of the Supreme Court is regularly understated because it misses several elements and particularly the lower courts’ lower-visibility actions (or non-actions), which are no less important despite their lower visibility. Included are the often-extensive discussions within the courts of appeals as to the meaning of the Supreme Court’s opinions, the pending cases that might have to be revisited, and rehearing petitions that will have to be entertained based on the new Supreme Court rulings. Also not much appreciated is courts of appeals’ anticipatory deference to the Supreme Court, particularly the deferring of action when the Justices are seen as likely soon to issue a ruling affecting pending cases, either by having granted certiorari to a case containing an issue before a court of appeals panel or even only considering granting certiorari to such a case. Whether Supreme Court rulings “make a difference” in the lower courts, a question not substantially explored by scholars, thus remains an open question. One reason is that we lack information about how a U.S. court of appeals actually deals with its superior’s intervention into its ongoing work and how it handles the fallout from Supreme Court action. A law-changing Supreme Court ruling affects the immediate parties, but it also affects many factually similar or legally related cases. When the Supreme Court decision also potentially affects many cases then “in the pipeline,” the affected lower court will have to engage in extra activity to cope, perhaps recalling mandates in recently decided cases and altering outcomes or remanding cases for further proceedings. These effects expand as the Justices return other cases to the circuit for reconsideration in light of the primary ruling or if they soon rule on related issues. The Supreme Court ruling will also be incorporated into pending cases in the court of appeals, which must engage in discussion of what http://digitalcommons.law.ggu.edu/ggulrev/vol42/iss1/6 2 Wasby: Inter-Court Dynamics 2011] Inter-Court Dynamics 7 the Supreme Court meant. The judges may withdraw submission in cases already submitted for decision and call for supplemental briefing, or they may instead remand rather than reach a merits disposition. From among cases pending, the court may select one or more to serve as vehicles for deciding multiple closely related questions. With many three-judge panels dealing with similar issues, the court may choose to sit en banc to maintain consistent results, and multiple en banc rulings decided at, or nearly at, the same time may reference each other. And, in the dynamic interaction that develops over time, cases that are both before panels and the en banc court may be affected by, and be affected by, Supreme Court rulings. Interaction between the court of appeals and the Supreme Court is thus quite dynamic. An initial Supreme Court opinion on a topic is unlikely to answer all questions. Thus the court of appeals judges can anticipate that the Justices will accept cases on follow-up questions, and those decisions will occur just as the appeals court judges are attempting to assimilate the first ruling, which perhaps may cause them to move hesitantly or even to suspend action until the Justices have ruled. Processes such as these may proceed through several iterations. This Article provides an examination of such complex dynamic interaction in the aftermath of the key 1973 border-search case of Almeida-Sanchez v. United States.1 In that aftermath, the U.S. Court of Appeals for the Ninth Circuit, where that case originated, had to cope with a mix of fast-developing Fourth Amendment law and the uncertain law of retroactivity as well as the effects in the many recently decided or pending appeals stemming from searches of varying intrusiveness at or near the border, at fixed checkpoints, whether permanent or temporary at a given location, or by roving patrols. The resulting question of retroactivity made the dynamics more complex: Was Almeida-Sanchez to be applied to pending cases and, if so, to those where searches pre-dated Almeida-Sanchez, to convictions on appeal when it was decided, or to recently-decided rulings not yet final because rehearing was possible? All this was made more difficult as several more Supreme Court rulings came down while the court of appeals was trying to sort out matters. What we see is, first, a story interesting in its own right for what it has to say with respect to the development of the law of search and seizure, and of border searches in particular, and also for contemporary concerns about “control of the border.” However, we also see a picture that may well be more generally indicative of the inter- and intra-court 1 Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973) (warrantless search by roving patrol away from border is not statutorily authorized border search and violates Fourth Amendment). Published by GGU Law Digital Commons, 2012 3 Golden Gate University Law Review, Vol. 42, Iss. 1 [2012], Art. 6 8 GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 42 dynamics that transpire in areas of law with high volumes of cases that are at various stages of the appellate process when the Supreme Court hands down a major ruling announcing new rules of law. This Article proceeds in chronological fashion but only roughly so; a chronological baseline is provided to aid the reader, and analysis of aspects of Supreme Court-court of appeals interaction is presented. The Article is based not only on court opinions but also on case files in the papers of Senior U.S. Court of Appeals Judge Alfred T. Goodwin, which contain communications among the judges as they decided cases; these materials provide necessary gritty texture to the usual portrayals of courts. Judge Goodwin’s papers are especially significant here because he served as the court’s en banc coordinator, responsible for monitoring and facilitating the judges’ communication.2 While the full court participated in the process of selecting cases for en banc treatment in the Almeida-Sanchez “backwash,”3 the en banc coordinator, working in concert with the chief judge and his colleagues, played a particularly important role. He did so not only by serving as the communication node for the court’s judges but also by helping direct cases for en banc consideration and even by selecting some of them. In the description and analysis that follow, one will see—and should be on the lookout for—a number of elements in the relationship between the U.S. courts of appeals and the Supreme Court. It is certainly clear that the Supreme Court has a great effect on later cases in the lower appellate courts. Thus, upon the Supreme Court’s handing down a relevant decision, a court of appeals will reconsider its own rulings on the basis of that decision or will remand to the district courts so that they may do so. While that might be considered obvious, there is also, as will be seen in what follows, considerable evidence that judges of the U.S. courts of appeals wait for the Supreme Court to act. Indeed, cases decided after a major Supreme Court ruling may well have been held until that ruling was issued. So, instead of plunging ahead, a court of appeals may well hold back to await further developments once cases on point have been tendered to the Justices for possible review, in what we might call anticipatory deference. Likewise, we see that, within the court of appeals, some panels may also defer action until “lead” cases on a subject are decided, with cases selected for en banc hearing—even 2 For a more complete treatment of the work of the en banc coordinator, see Stephen L. Wasby, “A Watchdog for the Good of the Order”: The Ninth Circuit’s En Banc Coordinator, 12 J. APP.PRAC.&PROCESS 91 (2011). 3 The term was used in a memorandum from Chief Judge Richard Chambers to Associates (Jan. 28, 1975). http://digitalcommons.law.ggu.edu/ggulrev/vol42/iss1/6 4 Wasby: Inter-Court Dynamics 2011] Inter-Court Dynamics 9 before panel ruling—to assist all panels in their work. And we will see as well another way in which the court of appeals defers to the Supreme Court, when it facilitates the moving of cases to the high court, perhaps by prompt en banc hearing of cases, which it may do even before panels have completed their work. THEBEGINNING:ALMEIDA-SANCHEZANDITS GVRS Toward the end of its 1972 Term, the United States Supreme Court handed down its ruling in Almeida-Sanchez v. United States.4 (See timeline at 46.) Justice Stewart, writing for a five-Justice majority, reversed the Ninth Circuit, revoking the carte blanche of 8 U.S.C. § 1357,5 and held that a warrantless search of an automobile by a roving patrol at a point at least twenty miles from the border, without probable cause or consent, was not a border search authorized by federal law.6 Recognizing that “national self protection reasonably requir[es] one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in,” the Justices upheld the constitutionality of border searches at the physical border or its functional equivalent.7 While joining the majority opinion, Justice Powell wrote separately to note that this case did not involve “the constitutional propriety of searches at permanent or temporary checkpoints removed from the border or its functional equivalent,”8 thus indicating matters with which the lower courts would have to deal. Not only was Justice Powell’s opinion to be debated, but the date of the Court’s decision—June 21, 1973—was to become central to much subsequent Ninth Circuit activity. Like all other border-search cases discussed here, the case had originated in the Southern District of California. The panel majority, Judges James Carter and Ozell Trask, had affirmed a conviction for importing marijuana, in a four-paragraph per curiam opinion.9 They recognized that the search was not a “border search” but held that the 4 Almeida-Sanchez, 413 U.S. 266. 5 The statute, inter alia, allows immigration officers, without a warrant, to interrogate and arrest aliens and suspected aliens, and to search and board vessels. The relevant regulation spoke of searches within 100 miles of the border. See 8 C.F.R. § 287.1 (Westlaw 2011). 6 The actual stop was twenty-five miles north of the border. Almeida-Sanchez,413 U.S. at 268. 7 Id. at 272 (quoting Carroll v. United States, 267 U.S. 132, 154 (1924)). 8 Id. at 276 (Powell, J., concurring). 9 United States v. Almeida-Sanchez, 452 F.2d 459 (9th Cir. 1972) (per curiam), rev’d, 413 U.S. 266 (1973). Published by GGU Law Digital Commons, 2012 5 Golden Gate University Law Review, Vol. 42, Iss. 1 [2012], Art. 6 10 GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 42 federal statute and regulation allowed it and found the search reasonable in scope. In his extensive dissent, Judge James Browning recognized, “Of course, prior decisions of other panels of this court bind this panel.” However, he felt that those rulings were “so clearly at odds with the requirements of the Fourth Amendment that they should be overruled.”10 It was Judge Browning’s position that Justice Stewart basically adopted. In dealing with border searches before Almeida-Sanchez, the Ninth Circuit had adopted some standards. One was “continuous surveillance,” in which a search of a vehicle away from the border would be upheld if the vehicle had been under continuous surveillance since it crossed the border. Also adopted was the related test that a search would be valid if the totality of circumstances persuaded the factfinder with a “reasonable certainty” that the contraband seized had been on board the vehicle from its crossing of the border.11 However, the court had moved toward approving checkpoint searches as if they were border searches, with Judge Browning saying, “We simply upheld all alien searches within 100 miles of the border . . . . The fact that some of the searches may have occurred at a checkpoint was irrelevant.”12 As the Supreme Court, while issuing some denials of certiorari, had not intervened in the Ninth Circuit’s border-search work, one could be “safe in saying that Almeida is the first time the Court has spoken since the 9th Circuit took it upon itself to develop new law re border searches.”13 As soon as the Supreme Court decided Almeida-Sanchez, two issues were raised, and they were to pervade the subsequent cases. One was whether fixed checkpoints were within Almeida-Sanchez’s ambit. It was raised by one of the court’s more senior members, Judge Fred Hamley, who quoted from the Supreme Court’s opinion and asserted that “the Court included checkpoint searches as well as searches by roving patrols.”14 However, in a theme that recurred in Ninth Circuit discussion over the next few years, he did note “observations” about the lead opinion in Justice White’s dissent and Justice Powell’s concurring opinion “to the effect that Almeida-Sanchez does not involve permanent 10 Id. at 461 (Browning, J., dissenting). 11 United States v. Alexander, 362 F.2d 379, 382 (9th Cir. 1966); see Memorandum from Barbara Reeves (law clerk to Judge Goodwin) (n.d.). 12 Memorandum from James R. Browning to Associates (Sept. 1, 1973). This would to tend to indicate that ideologically the court was relatively homogeneous on this matter. However, some aspects of search law, such as what constituted “founded suspicion” for a search, did produce disagreement within the court, particularly between its two most liberal members, Walter Ely and Shirley Hufstedler, and their more conservative colleagues. 13 Memorandum from Barbara Reeves to Judge Goodwin (n.d.). 14 Memorandum from Fred Hamley to Judges Eugene Wright, Charles Powell (E.D. Wash.), and Associates, (Aug. 1, 1973) (re United States v. Schlect, No. 72-2445). http://digitalcommons.law.ggu.edu/ggulrev/vol42/iss1/6 6 Wasby: Inter-Court Dynamics 2011] Inter-Court Dynamics 11 or temporary checkpoints.”15 The other issue was retroactivity. Within a few weeks of the Supreme Court’s ruling, a judge wrote to the en banc coordinator, Judge Goodwin, “I am not sure if it was ever decided what case we are waiting for on the decision of retroactivity,” and noted that “I have couple of cases waiting.”16 The Supreme Court also returned two cases to the Ninth Circuit for reconsideration in light of Almeida-Sanchez. In Foerster v. United States, after certiorari had been granted in Almeida-Sanchez but a year before the Supreme Court’s decision, a panel of Judges Browning, Merrill, and Wright, speaking per curiam and citing the court’s own Almeida-Sanchez ruling, had held that immigration officers may stop and investigate cars for concealed aliens without probable cause.17 After the GVR, Judge Browning, who had “been assigned the writing of an opinion . . . involving the question of Almeida-Sanchez’s applicability to searches at ‘fixed checkpoints,’” thought the proper course was to remand cases like Foerster (there were others as well) to the district court “to determine whether a search at the relevant checkpoint was the ‘functional equivalent’ of a border search within the meaning of Justice Stewart’s plurality opinion.”18 His law clerk drafted an opinion, but, showing the interrelationship between various cases in the court of appeals, suggested it be filed only if Judge Goodwin were to hold Almeida-Sanchez retroactive to appeals pending when that case was decided.19 Judge Browning, who proposed to wait for a Judge Goodwin opinion “holding that the rule of Almeida-Sanchez is to be applied to pending appeals,”20 said he was “content to await Judge Goodwin’s views on both issues.”21 The other post-Almeida-Sanchez GVR was Bowen v. United States,22 the ruling for which Judge Browning would wait. At first this 15 Id. In a July 12, 1973, memorandum, Judge J. Clifford Wallace quoted Justice White’s dissent and Justice Powell’s concurrence in support of his position that Almeida-Sanchez encompassed no more than roving patrols. Judge Browning was to disagree, objecting on Sept. 1, 1973, to Judge Wallace’s calling Justice Stewart’s opinion “the plurality opinion” when, for Browning, it was “the opinion of the Court.” 16 Memorandum from J. Clifford Wallace to Alfred T. Goodwin (July 12, 1973). 17 Foerster v. United States, 455 F.2d 981 (9th Cir. 1972), reh’g denied Mar. 15, 1972, cert. granted, vacated, remanded, 413 U.S. 915 (1973). 18 Memorandum from James R. Browning to Alfred T. Goodwin, Charles Merrill (Aug. 31, 1973). 19 Memorandum from Jim Babcock (law clerk to Judge Browning) to Browning (Aug. 28, 1973). 20 Memorandum from James R. Browning to Associates (Aug. 15, 1973). 21 Memorandum from James R. Browning to Associates (Sept. 1, 1973). 22 United States v. Bowen, 462 F.2d 347 (9th Cir. 1972) (per curiam), cert. granted, vacated, Published by GGU Law Digital Commons, 2012 7 Golden Gate University Law Review, Vol. 42, Iss. 1 [2012], Art. 6 12 GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 42 case seemed relatively insignificant, but it was to become one of the Ninth Circuit’s first en banc rulings on border searches and the court’s focal case in Almeida-Sanchez’s immediate aftermath, and it would also return to the Supreme Court. Shortly after the Ninth Circuit’s ruling in Almeida-Sanchez but before Supreme Court arguments, a panel of Circuit Judges Charles Merrill and Alfred Goodwin and District Judge Lawrence Lydick (C.D. Cal.) had, per curiam, affirmed a conviction for smuggling marijuana and other drugs on the basis that the evidence was sufficient to uphold the convictions.23 The panel’s one sentence about the search (“The search and seizure were plainly lawful.”24) was in effect a holding that stops by an immigration officer at a fixed checkpoint station were valid under § 1357.25 A third Supreme Court GVR in light of Almeida-Sanchez, Chambers v. United States, came at the beginning of the Supreme Court’s next Term.26 It had been an unpublished affirmance of a conviction also from the Southern District of California in which the challenged search had taken place in 1972.27 In an indication that the complex development of border search and retroactivity law could delay final action in cases, after the Supreme Court’s remand the Ninth Circuit panel of (former) Chief Judge Chambers, Judge Herbert Choy, and District Judge William Sweigert (N.D. Cal.) took until April 5, 1977, to dispose of the case by affirming the district court because Almeida- Sanchez “does not retroactively apply to fixed checkpoint searches which occurred prior to the date that case was decided.”28 ENBANCS The Supreme Court’s Bowen remand began a period of considerable Ninth Circuit en banc activity, with several en banc cases proceeding in parallel. Activity in Bowen is a thread tying together the Ninth Circuit’s post-Almeida-Sanchez border-search cases. At one point, a judge noted that the court had taken seven cases en banc to deal with various elements posed by the Almeida-Sanchez “problem.”29 This is what remanded, 413 U.S. 915 (1973). 23 Bowen, 462 F.2d 347. 24 Id. at 348. 25 Id. 26 Chambers v. United States, 414 U.S. 896 (1973) (granting cert., vacating, and remanding). 27 United States v. Chambers, No. 73-1028. 28 United States v. Chambers, 554 F.2d 1071 (1977). 29 Memorandum from Ben C. Duniway to Associates (Feb. 25, 1974) (re United States v. Bowen, No. 72-1012). http://digitalcommons.law.ggu.edu/ggulrev/vol42/iss1/6 8 Wasby: Inter-Court Dynamics 2011] Inter-Court Dynamics 13 Judge Goodwin, the Ninth Circuit’s en banc coordinator, called a “dreadful glut” of such cases.30 The en banc coordinator had the duty of enforcing court rules, particularly deadlines for circulation of memos about en banc rehearing, and of superintending the voting on whether to rehear a case en banc.31 As Chief Judge Richard Chambers had asked Judge Goodwin to take the position not long after Goodwin joined the court in 1971, during decision of the border-search cases he was “a rookie en banc coordinator.”32 During this period, the Ninth Circuit en banc was the full court, not the more limited en banc panel (LEB) used starting in 1980, so all the judges were involved in all border-search cases that were proceeding simultaneously during this period of intense activity. Shortly after the Ninth Circuit received news that the Supreme Court had GVR’d Bowen, Judge Goodwin noted that the case had already been discussed at a meeting of court and council33 and indicated the need for a comprehensive opinion in the case. His position: “I cannot conceive of any basis for refusing to apply Almeida-Sanchez to cases pending on appeal at the time the Supreme Court issued its opinion.”34 He pointed to “[t]he manner in which the Supreme Court summarily vacated Bowen and remanded it for consideration in light of Almeida- Sanchez,” which he said “would seem to answer the question whether Almeida-Sanchez was intended to apply to pending cases.”35 As he put it, “The Supreme Court evidently thinks Almeida-Sanchez applies to cases that had been decided in our court, and, a fortiori, would apply to cases still on appeal in our court.”36 Not only did his law clerk disagree with him on this point,37 but Chief Judge Chambers also took a poke, taking a dim view of court-wide memoranda on the meaning of “The judgment is vacated and remanded for consideration in the light 30 Email from Alfred T. Goodwin to author (Apr. 15, 2010) (on file with author). 31 See Stephen L. Wasby, “A Watchdog for the Good of the Order”: The Ninth Circuit’s En Banc Coordinator, 12 J.APP.PRAC.&PROCESS 91 (2011). 32 Email from Alfred T. Goodwin to author (Apr. 15, 2010) (on file with author). 33 At that time, the circuit council consisted of the court’s active judges sitting while wearing their administrative hats. District judges were to be added to the circuit council in 1980. 34 Memorandum from Alfred T. Goodwin to Judge Wallace, Judge William Byrne (C.D. Cal.), and Associates (July 16, 1973). 35 Id. 36 Id. 37 Memorandum from Don Friedman (law clerk to Judge Goodwin) to Judge Goodwin (Aug. 6. 1973) (“I don’t think that we can draw any inference about how the Court felt that Almeida- Sanchez was to be applied. To my mind, all that the Court was doing was remanding . . . to consider whether or not Almeida-Sanchez was to be given retroactive effect.”). Published by GGU Law Digital Commons, 2012 9