Supreme Court Review of The Short-Listers’ Decisions

With one day until his inauguration, President Elect Trump has yet to nominate a candidate for the vacant seat on the Supreme Court.  While he initially released a list of twenty-one possible candidates for the vacancy, CBS’ Jan Crawford reports that the list of candidates may be furthered narrowed to five – including 11th Circuit Judge William Pryor, 7th Circuit Judge Diane Sykes, 3rd Circuit Judge Thomas Hardiman, 8th Circuit Judge Steven Colloton, and Michigan Supreme Court Justice Joan Larsen  (Crawford later reported that 10th Circuit Judge Neil Gorsuch is also on her shortlist of candidates).  In recent days Above the Law’s David Lat reported that Trump already started formally meeting with potential candidates as he sat down with Judge William Pryor.  Pryor’s ties to Alabama as its prior attorney general (he was preceded in that office by Trump’s pick for U.S. Attorney General, Jeff Sessions), appear to further enhance his chances.

How would these six nominees (the ones mentioned by Crawford) shift the dynamic of the current Supreme Court? One way to gauge this is based on ideological measures showing how their perceived political preferences might shift the Court’s balance (although the underpinnings of such models have been met with some criticism).  Another way is using the data we have on cases they have decided, which later made their way to the Supreme Court for further review.  The majority of such cases come to the Supreme Court by petitions for writs of certiorari, which the Court generally denies.  In several instances though the Court examined cases previously decided by this set of judges.

Joan Larsen: Justice Larsen is the only judge on this list who has not decided a case that has been petitioned to the United States Supreme Court.  Since her appointment to the Michigan Supreme Court in late 2015, Justice Larsen only authored four published majority majority opinions and two dissents. None of these have led to cert petitions.  In December, Larsen recused herself from a Michigan election-related case, Attorney General v. Board of State Canvassers, due to her incorporation on Trump’s shortlist.

William Pryor: Judge Pryor has been a judge on the 11th Circuit since 2004, which provided ample time for some of his decisions to make their way up for Supreme Court review.  Of his majority decisions, 80 led to cert petitions which the Supreme Court denied.  Three of his dissenting opinions were also written in cases later petitioned to the Supreme Court and subsequently denied cert.

Only one of Judge Pryor’s opinions, in CSX Transp., Inc. v. State Bd. of Equalization, was later reviewed by the Supreme Court.  This case related to whether state courts could accept states’ determinations of market value (in this case of railroad property) without scrutinizing the states’ tax practices.  Judge Pryor’s decision was reversed by a unanimous court with an opinion written by Chief Justice Roberts holding that state courts could not accept these market valuations without further scrutiny.

Diane Sykes: Judge Skyes also assumed her position on the Seventh Circuit in 2004.  The numbers relating to her opinions that later led to Supreme Court review are similar to Judge Pryor’s.  78 of her majority opinions led to later denied cert petitions.  Seven of her dissenting opinions were in cases later denied cert as well.

One of Judge Sykes decisions, Ali v. Achim was later granted cert by the Supreme Court.  This case dealt with whether the government could deny an immigrant protection based on a non-felony crime he committed.  While Judge Sykes’ decision denied review with respect to asylum, the government subsequently granted protection to the immigrant and the case was settled without Supreme Court resolution.

Thomas Hardiman: Judge Hardiman has been a judge on the Third Circuit Court of Appeals since 2007 and prior to that sat on the District Court for the Western District of Pennsylvania from 2003 through 2007.  While on the Third Circuit, 68 of his majority decisions later petitioned to the Supreme Court were denied cert.  The same is true of six of the cases in which he wrote dissenting opinions.

Three of his majority decisions while on the Third Circuit later led to cert grants.  The most recent grant was in this Term’s Czyzewski v. Jevic Holding Corp. argued on December 7th.   In this case Judge Hardiman ruled that in limited instances, bankruptcy decisions can deviate from priority rules derived from the Bankruptcy Code.  The Supreme Court has yet to resolve this case.

The second of these decisions later granted cert was in Florence v. Bd. of Chosen Freeholders (2012).  Judge Hardiman’s decision allowed for a liberal application of strip searches for arrested individuals prior to their entering the prison population.  A divided Supreme Court affirmed with a conservative majority consisting of Justices Scalia, Kennedy, Thomas, Alito and Roberts.  The dissenting Justices in the case were Justices Ginsburg, Breyer, Sotomayor, and Kagan.

The last decision that led to Supreme Court review was in Abbot v. United States, a case dealing with whether mandatory minimum sentences should run concurrently with other counts that extend beyond the mandatory minimum.  The Supreme Court affirmed Judge Hardiman’s decision that the sentences should run concurrently with an 8-0 vote. Judge Kagan recused herself from the case because she was counsel at the court of appeals in her role as the Solicitor General.

Neil Gorsuch: Judge Gorsuch began his tenure on the 10th Circuit in 2006.  He has the greatest number of majority opinions that later led to cert denials with 138.  Three cases in which he dissented were also denied cert (no cases in which he dissented were later granted cert).

Two cases in which Judge Gorsuch wrote the majority opinion for the 10th Circuit later led to cert grants by the Supreme Court.  The first, United States v. Sanchez, 252 Fed. Appx. 900 (10th Cir. 2007), dealt with sentence length and the 10th Circuit opinion held that the defendant’s sentence was generally proper in light of the circumstances, but that certain aspects under the Career Offender provision should be remanded to the lower court for further review.  The Supreme Court granted, vacated and remanded (GVRed) the case based on its decision in Gall v. United States in which the Court held that the appellate court should defer to the district court’s reasonable decision regarding such sentencing factors.

The second case was United States v. Dolan which dealt with statutory restitution payments based on bodily injuries.  The Supreme Court in a 5-4 split vote affirmed Judge Gorsuch’s decision that deferred to a district court’s power to order restitution even if that court missed the deadline for such order if that court already acknowledged it would order restitution.  The Supreme Court majority was composed of Justices Breyer, Ginsburg, Sotomayor, Alito, and Thomas (a peculiar grouping).  This dissent was made up of Justices Roberts, Stevens, Scalia, and Kennedy.

Steven Colloton: Judge Colloton has been a judge on the Eighth Circuit since 2003.  Of the six judges, Judge Colloton has held a seat on his current court for the longest period of time.  In that time 128 of his majority opinions have later led to cert denials and seven cases in which he dissented also led to cert denials.

Of the six judges, Judge Colloton is also the judge with the most opinions later reviewed by the Supreme Court with four of his majority opinions and in two cases in which he dissented.  Of his majority decisions, two later led to GVRs in United States v. Springston (based on the decision in Reynolds v. United States) and United States v. Ingram (based on Chambers v. United States). Both cases dealt with sentencing – Springston under a statute for failing to register as a sex offender and Ingram for unlawfully possessing a firearm after a prior felony conviction.

Colloton’s decision in Gross v. FBL was vacated and remanded by a conservative majority composed of Justices Roberts, Alito, Thomas, Kennedy, and Scalia.  Colloton’s opinion in this employment action reversed a district court’s decision that held for an employee in an age discrimination claim after shifting the burden of persuasion to the employer.  Colloton’s decision in Ark. Dep’t of Health v. Ahlborn was affirmed by a unanimous Court.  This case examined whether a state could claim a personal injury settlement to pay for previously disbursed Medicaid benefits relating to the same injury.  Both courts upheld the requirement that states could not put a lien on settlements to recover Medicaid benefits.

Of the cases in which Judge Colloton dissented, the more recent of the two to reach Supreme Court review was in B& B Hardware, Inc. v. Hargis Indus.  The Court reversed and remanded the decision although Justices Scalia and Thomas dissented.  The case dealt with issue preclusion in a trademark dispute and the Court upheld the use of issue preclusion by the Trademark Trial and Appeal Board.

The second decision, Milavetz, Gallop & Milavetz, P.A. v. United States, was affirmed in part and reversed in part by a unanimous Supreme Court.  The Supreme Court upheld the 8th Circuit’s interpretation of attorneys as potential debt relief agents.  Judge Colloton’s dissent related to the decision that the attorney provision was unconstitutionally overbroad and in violation of the First Amendment.  The Supreme Court’s majority agreed with Judge Colloton that the statute’s disclosure requirements were reasonable under the First Amendment.


While Judge Pryor may still be the leading candidate for the nomination even with the Court’s unanimous decision reversing the one case of his that it reviewed on cert, none of the judges described above have had significant interaction with the Supreme Court based on their prior decisions.  Judge Colloton has had the most interaction with six of his decisions (four majority opinions and two dissents) leading to Supreme Court review.

There are few red flags for conservatives among these decisions.  Several of these decisions were affirmed by a unanimous Court and only two cases led to 5-4 split Supreme Court decisions (Judge Gorsuch’s decision in Dolan which was affirmed by an ideologically mixed majority and Judge Hardiman’s decision in Florence v. Board of Freeholders which was affirmed by the Court’s conservative majority).


On Twitter: @AdamSFeldman

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