One of the best ways to forecast future events is through past trends. The U.S. Supreme Court hears the majority of its cases after a decision is rendered by one of the 13 federal courts of appeals. Since there are 13 circuits and the Supreme Court takes somewhere between 60 and 70 cases each term the Court ends up taking multiple cases from most circuits each term. Last term the high numbers of cases per circuit were 12 from the 9th Circuit and eight from the 5th Circuit. On the other end of the spectrum the Court heard one case from each of the Federal and 3rd Circuits. Each Supreme Court case tells us something about the justices’ view of the lower courts and more importantly of the judges below.
There is little doubt that this is one of the most conservative Supreme Courts in history. With six fairly clear conservative justices and three liberals, the conservative justices can dictate almost every case outcome. They can also dictate the cases the Court takes as the norm for cert decisions (the decision to take a case on the merits) is that four justices are needed for grants. This is called the Rule of Four.
This post uses data from the 2021 Supreme Court term to help predict outcomes of cases the Court has heard or will hear this term. There are several pieces of information utilized to make these predictions. Much of the research in this area has been looking at cues the Supreme Court takes from the lower courts in selecting the cases the Court hears on the merits. A few papers using a variety of methodologies have focused on the Court’s decision making on the merits. One area of considerable interest has been the role the Solicitor General plays in the Court’s decisions.
This article focuses specifically on the interaction between the courts of appeals judges and the Supreme Court Justices with the assumption that the justices base their decisions, at least in part, on assumptions they have of the lower court judges and particularly on the reliability of the signals the lower court judges send. These cues include when certain lower court judges are in the majority or when they are in dissent (either on a panel or an en banc).
Since the new data collection for this article is only from one full term I supplemented this data with coding from the Judicial Common Space (JCS). The JCS provides ideology scores for court of appeals judges based on the judges’ appointing presidents and home state senators. Since the JCS scores are not based on actual votes though they only provided limited utility in predicting vote outcomes beyond noting the party of appointing president. To the extent that the conservative justices on the Supreme Court look for cues from more conservative judges on the courts of appeals, the JCS at least gave some indication of the judges’ relative preferences.
Last Terms’ Judges and Cases
The 5th Circuit Court of Appeals is known to lean heavily conservative. A conservative Supreme Court should then look to 5th Circuit cases with liberal judges in the majority or with specific conservative judges in dissent to overturn. One of the more liberal judges on the circuit is Clinton appointee Judge James Dennis. Dennis was on three panels whose decisions were reviewed and reversed by the U.S. Supreme Court: Ysleta del Sur Pueblo v. Texas, Ramirez v. Collier, and in Dobbs v. Jackson Women’s Health.
Judge Ho of the 5th Circuit is a conservative judge appointed by Trump who is notable for providing cues to the Supreme Court of cases the Court should affirm or reverse based on his positions. Although Judge Ho was in the majority of Dobbs v. Jackson Women’s Health, he provided reasons for why he was in the majority in his concurrence, and specifically noting the troubling tension between what he viewed as the “proper” ruling and what stare decisis declared:
“It is troubling enough to many Americans of good faith that federal courts, without any basis in constitutional text or original meaning, restrict the ability of states to regulate in the area of abortion. But that is of course what decades of Supreme Court precedent mandates. Accordingly, I am required to affirm.”
The Supreme Court followed Judge Ho’s positions in two other cases as it affirmed the panel decision in Cummings v. Premier Rehab Keller and reversed the decision in Houston Community College System v. Wilson after Judge Ho dissented from the en banc denial.
Although the 9th Circuit is no longer the most reversed appeals circuit, it is not surprising due to its traditionally liberal composition and the Supreme Court’s conservative bent that the Supreme Court often reviews cases from the 9th Circuit and reverses them on the merits. The Court reviewed several 9th Circuit decisions last term from panels with repeat judges. It also took more cases from the 9th Circuit than from any other lower court. One 9th Circuit judge, Milan Smith, authored four of the opinions reviewed by the Supreme Court in the 2021 Term: Garland v. Aleman Gonzalez, Becerra v. Empire Health Foundation, United States v. Washington, and Kennedy v. Bremerton School District. All four decisions were reversed. Smith was a George W. Bush nominee to the 9th Circuit and has a high JCS Score indicating that although Smith possesses the background traits that the Supreme Court might associate might support, he is one of several Republican appointed circuit court judges whose decisional choices run contrary to those of the majority of the Supreme Court Justices.
Conversely, the Supreme Court follows cues from several 9th Circuit Trump appointees– notably Judges VanDyke and Bumatay. VanDyke dissented from a panel vote and from an en banc denial both of which were overturned by the Supreme Court in the 2021 term. The panel dissent was in Arizona v. City and County of San Francisco and the dissent from en banc denial was in Shinn v. Ramirez. Bumatay dissented from the en banc denial in Shinn along with VanDyke, as well as in three other en banc denials leading to Supreme Court reversals in Federal Bureau of Investigation v. Fazaga, Egbert v. Boule, and Vega v. Tekoh.
Judge Selya of the 1st Circuit is another Republican nominee (Reagan) who was on multiple panels that the Supreme Court reversed last term. These included his majority opinions in Shurtleff v. City of Boston and Concepcion v. United States, and his majority panel participation in Carson v. Makin.
Beyond specific judges, panel ideological compositions and votes provide the Supreme Court with indications of when to affirm or reverse lower court decisions as well. Here are some examples:
- The Court reversed the 1st Circuit decision in United States v. Tsarnaev. The panel consisted of Democratic nominees Judges Thompson and Kayatta along with Republican nominee Judge Torruella who dissented from the panel vote.
- The Court reversed multiple 2nd Circuit decisions with two Democratic nominees on the panels. All three included Judge Pooler. These include Thompson v. Clark (Judges Pooler and Lynch), New York State Rifle & Pistol Association. v. Bruen (Judges Newman and Pooler), and the companion case to ZF Automotive US, Inc. v. Luxshare, AlixPartners, LLP v. Fund for Protection of Investors’ Rights in Foreign States (Judges Pooler and Cabranes).
- The Court followed signals from 6th Circuit judges in reversing panel decisions in Brown v. Davenport where not only did conservative Judge Readler dissent from the panel decision, but Judges Thapar and Griffin wrote dissents from the en banc denial. The Court reversed the decision in EMW Women’s Surgical Center v. Friedlander where two more liberal judges, Clay and Merritt, were in the panel majority and more conservative Judge Bush dissented. The Supreme Court also affirmed the decision in Babcock v. Kijakazi where more conservative Judges Boggs and Sutton were in panel majority along with the more liberal Judge Cole.
The Supreme Court was not always predictable in its decisions based on panel composition though. Two examples from last term of decisions that went against this cue theory were in the affirmance of the 4th Circuit’s decision in United States v. Taylor and the reversal of the 6th Circuit’s decision in US v. Wooden. The 4th Circuit affirmance was probably the most surprising since panel consisted of all more liberal judges: Judges Motz, King and Floyd. The decision in Wooden was less of a shock as the panel included two conservative judges, Readler and Kethledge and one more liberal judge, Gilman. Although the expectation may be that the Court will uphold decisions of panels with two conservative judge, there are multiple instances where the Supreme Court reversed decisions with this type of panel composition.
We only have a few decisions from the 2022 Term so far. One that followed intuition based on the previous term was Helix Energy Solutions Group v. Hewitt. Judge Ho was in both the panel and en banc majorities. Although several Republican appointees including Judge Wiener (who was on the panel as well) dissented from Judge Ho’s en banc opinion, Wiener is one of several Republican appointees to the 5th Circuit who often vote in opposition to the more conservative judges, so his dissent may have actually directionally signaled the same thing as Judge Ho’s majority vote.
We should also be able to make some predictions for this term if decisions from last term help portend future outcomes. Some such decisions are from the 9th Circuit. The Supreme Court should overturn the decision in U.S. v. Hansen where the panel included more liberal judges Gould and McKeown and Judge Bumatay dissented from the en banc denial. If there is a 9th Circuit decision that the Supreme Court should affirm it is in Wilkins v. United States included a panel of all conservative, Republican nominees including the aforementioned Judge VanDyke along with Judge Bress and 10th Circuit Judge Ebel. Conversely, if the Court continues to put a lot of faith in Judge Bumatay’s votes then it should overturn the panel decision in Axon Enterprise v. Federal Trade Commission where Judge Bumatay dissented in part even though the panel included two other Republican nominees with Judge Lee and 6th Circuit Judge Siler.
Although there are not many cases where the Supreme Court should affirm based on lower court composition there are a few. One is in U.S. ex rel. Schutte v. SuperValu. Here the 7th Circuit panel consisted of more conservative minded Judges St. Eve and Rovner with the more liberal Judge Hamilton in dissent. Another affirmance may come in the 8th Circuit’s decision in Jones v. Hendrix where three more conservative judges — Gruender, Benton, and Shepherd sat on the panel with no dissents. One last affirmance may come in the 6th Circuit’s decision in Perez v. Sturgis Public Schools where Judges Thapar and Boggs were in the panel majority and the more liberal Judge Stranch was in dissent.
While there are many other likely reversals, some of the notable possibilities include the 6th Circuit’s decisions in Polselli v. Internal Revenue Service and in the Third Circuit’s decision in Groff v. DeJoy. The panel in majority in Polselli was made up of the more liberal Judges Moore and Donald with the more conservative Judge Kethledge in dissent. The panel majority in Groff was made up of the more liberal Judges Shwartz and Fuentes with the more conservative Judge Hardiman in dissent.
A few concluding notes. Firstly, these assumptions are not absolute. The Court already defied the predictability based on panel composition once this term by affirming the 9th Circuit’s decision in Bartenwerfer v. Buckley where two more liberal circuit judges, McKeown and Nguyen, sat alongside District Court Judge Huck with no dissents.
Secondly and as mentioned above, since much of the information from panel composition likely factors into the Court’s decisions of which cases to take, the fact that the Court often takes cases and makes decisions related to lower court judge composition is partially predetermined based on cert decisions. This is likely accentuated even further when the Court takes cases where more conservative judges below dissent from en banc denials.
Lastly, the Supreme Court generally reverses more often than it affirms lower court decisions. Many of the reversals from last term were probably predictable based on that assumption alone. There is, however, much added value from knowing the panel compositions from below. These help intimate when the Court may affirm lower court decisions and help explain why the Court reverses many other decisions.
The current Supreme Court seems to not only take its cues from conservative lower court judges, but particularly from Trump’s nominees including Judges VanDyke, Bumatay, Ho, and Thapar to name a few. If we had to make a separation between conservative judges for predictive purposes, a safe bet is likely to first trust the signals sent from Trump’s judicial nominees to the courts of appeals.
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