One trope that was often repeated this past Supreme Court term was that the Court did not take on a particularly exciting caseload. Evidence for this comes in the form of the unprecedented level of agreement among the justices compounded by the eight justice composition for most of the term that wished to avoid 4-4 split decisions. This made it an interesting year from the perspective of the law the Court laid down, and leads to a question we have not had many opportunities to ask – that is – when the Court takes a lighter caseload do its decisions have less resounding effects? In some sense the answer to this question is yes.
One way to gauge the extent of the Court’s decisions is by the decisions’ applications in the lower courts. There are multiple ways that cases can be applied in the lower courts, yet citations provide a controlled and quantifiable manner to gauge how deeply the Courts decisions have permeated. While lower courts release many decisions each year that go unpublished and are, therefore, less likely to apply to other cases, published decisions are easily accessible and can apply as precedent (depending on the level of the citing court).
In recent years, the Court’s decisions surrounding criminal sentencing have had the vastest repercussions relating to downstream citations. This year was no different and the differential has been quite significant so far. The Court’s decision in Beckles v. United States has accrued nearly half as many lower court citations as the rest of the Court’s decisions from this term combined (note that these citations continue to accrue so the numbers will very likely change).
These citations to the Court’s decision in Beckles have been growing recently at a robust rate of almost ten citations a day. Beckles has already been cited more than any of the Court’s decisions from last term at this point last year.
Why the high rate of citations to Beckles? Beckles could have amended the sentences of many inmates sentenced under the Federal Sentencing Guidelines. The question in Beckles was whether the residual clause in the career-offender provision of the Sentencing Guidelines should be held unconstitutionally vague. Presumably every inmate whose sentence was affected by this clause could have appealed if the Court had ruled the provision void. The Court, with an opinion by Justice Thomas, ruled in favor of the United States stating,
“Because we hold that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, we reject petitioner’s argument.”
Many challenges that were raised under the prospect of a decision against the government in Beckles were then abandoned, and this is why the bulk of the citations to Beckles are from federal district courts.
Setting Beckles aside for a moment, citations to remainder of the orally argued cases this term are graphed in the figure below:
The top two most cited cases after Beckles also fall into the criminal law context. The decision in Buck examined the proper extent of court of appeals’ review on a certificate of appealability and found that the Fifth Circuit exceeded its scope of review. In a similar vein to courts’ citations to Beckles many federal district courts have cited the Court’s decision in Buck regarding the proper scope of review for courts of appeals.
The Court in Manuel, with an opinion by Justice Kagan, examined Fourth Amendment challenges to pretrial detention and held,
“pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process in a criminal case. The Fourth Amendment prohibits government officials from detaining a person in the absence of probable cause…That can happen when the police hold someone without any reason before the formal onset of a criminal proceeding. But it also can occur when legal process itself goes wrong—when, for example, a judge’s probable-cause determination is predicated solely on a police officer’s false statements.”
The next most cited case, TC Heartland, clarified permissible venue under the patent venue statute, holding that the state of incorporation is the proper residence for domestic corporations under the statute, and is thus applicable to many pending patent cases.
Placing Beckles back into the fray for a moment, federal district courts tended to dictate the overall most cited cases this term while the courts of appeals did this to a lesser extent.
Since many preliminary attacks based on Supreme Court outcomes occur in federal district courts, the link between all citations and district court citations is understandably robust. Interestingly, the most cited case in federal courts of appeals after Buck is the Endrew F case. Endrew F dealt with the extent of education that a school must provide a student under the Individuals With Disabilities Act and appeals citing this case have primarily looked to the proper standard dictated by the Court.
The federal courts of appeals citing the Court’s cases the most are somewhat (although not entirely) surprising.
The Fifth Circuit cited the Court’s opinions far more than any circuit so far and appreciably more so than the largest circuit – the Ninth. The Fifth Circuit is the heaviest citer of the Buck decision, although it is well under the Fourth and Tenth Circuits in cites to Beckles.
State courts’ cites to the Court’s decisions this term look vastly different than federal courts’ cites. There are also no cases like Montgomery v. Louisiana (a state court sentencing-related case) last term that have thus far led to a high volume of state court cites.
Often cases decided below in state courts lead to the most cited Supreme Court decisions by other state courts. Although both Kindred Nursing and Moore arose in state courts, the First Circuit was the lower court in Bravo-Fernandez. Both Moore and Bravo-Fernandez affect the extent of process afforded in the criminal justice context. The Court in Kindred Nursing, a case that arose in the civil context, interpreted Kentucky’s clear-statement rule dealing with arbitration agreements and access to courts under principal-agent relationships.
By this point last year, lower courts had already cited four Supreme Court cases from last term over 100 times (Welch, Montgomery, Mullenix, and Ross v. Blake). Courts have only cited two cases this year over 100 times and the citation counts decline precipitously after the first few most cited cases.
Last year’s most cited case, Welch, dealt with a similar issue to that in Beckles. Welch dealt specifically with the retroactivity of the Court’s decision in Johnson regarding enhanced sentences under the Armed Career Criminal Act. These three cases, Beckles, Welch, and Johnson, have extensively affected lower courts’ decisions on sentencing. They are also the most cited decisions from the 2014 (Johnson), 2015 (Welch), and 2016 (Beckles) Supreme Court terms and will inevitably play a role in many more decisions moving forward.
On Twitter: @AdamSFeldman