SCOTUS VS. SCV – SOME KEY DIFFERENCES
(Posted May 28, 2019) Business has been a little slow at Ninth and Franklin this month – only four writs granted and five merits decisions so far this month – so let’s explore a fresh topic: some of the differences between the Supreme Court of the United States and the Supreme Court of Virginia. Most of this discussion will be old hat to the established appellate bar, but I recognize that my audience includes numerous readers who will find this informative.
Number of justices – You already know that there are nine Robes in Washington and seven in Richmond. But the sources of those figures are slightly different. The U.S. Constitution establishes the high Court but doesn’t say how many seats there are. That’s done by statute: 28 U.S.C. §1 provides for one chief justice and eight associate justices. This statute dates to 1869; initially the court consisted of six seats. History fans will recall that President Franklin Roosevelt tried to stack the court by adding seats, but that didn’t go anywhere.
Here in Virginia, the seven-member court is in our constitution. Art. VI, §2 specifies that number, but allows the legislature to increase it to as many as eleven, so long as supermajorities of both chambers so vote in back-to-back regular sessions. There are no associate justices in Richmond; anyone who’s not the chief is simply a justice.
Tenure – As with all federal judges, SCOTUS justices enjoy life tenure. That can lead to some geriatric officeholders, such as Justice Holmes, who served the Court at 90.
In Virginia, there are two limits on tenure. First, the legislature elects justices for twelve-year terms, and theoretically a justice could find himself involuntarily unemployed at the end of that term, though that almost never happens. And second, the justices are subject to the mandatory retirement age of 73 years, found in Code §51.1-305.
In at least one key respect, life tenure today means something quite different from what it meant to the Framers. The average life expectancy back in the late 18th Century was under 50 years. Today it’s close to 80.
Error correction – Appellate courts serve two purposes. They exist to correct errors made in lower courts, and to develop the law. This latter function, often called certiorari, can involve fleshing out gaps in existing law or reversing outdated precedent in some cases. The Supreme Court of Virginia performs both functions, as it’s the only appellate court with jurisdiction over most case types.
It’s different in Washington, at least in theory. SCOTUS is pure certiorari. This sometimes means that the court declines to take a case that most of the justices believe that the lower court decided erroneously. To get a precious spot on the SCOTUS argument docket, the petitioner has to show that the case presents an issue of sufficient importance that it deserves that special attention. Things aren’t quite so bad for disgruntled trial-court litigants, though, since the federal circuit courts of appeals provide one round of error correction.
The only foundation for what follows here is my sense, not empirical data, but I suspect that the SCV may be moving toward becoming more of a court of certiorari, exercising its error-correction function far less often than it did a generation – or even half a generation – ago. If I’m right, I regard that as an unhealthy trend, as it makes it tougher to get any appellate scrutiny at all. If the justices take a pass on an erroneous ruling because the assignment of error doesn’t seem significant enough to the court, the aggrieved litigant will just have to live with that error.
Grant of review – While the terms used are slightly different, both courts select cases for a merits docket after a petition process. In Washington, all nine justices participate in the process of deciding which petitions for certiorari to grant. The Court meets in conference on Fridays and votes on which petitions to grant, issuing an order the following business day. It takes four votes to grant cert.
The Supreme Court of Virginia initially considers petitions for appeal in three-justice writ panels. Unlike their brethren and sistren across the Potomac, who decide petitions based only on the papers, these Virginia panels listen to short oral arguments in support of the petitions.
By statute and rule of court, if there’s any disagreement in the panel over what to do, the appeal goes to the full court for a merits decision. That means that, by statute and Rule 5:3(c), a single justice can grant an appeal. But in August 2017, the justices decided to do things differently. The court now requires two votes from a writ panel to award an appeal. The statute is still in place and the court hasn’t amended the rule, but that’s the way things are done now.
SCOTUS announces writ grants en masse in a single order, issued publicly on Monday mornings. The SCV issues individual rulings by order sent only to the litigants in a given case. Each Tuesday, it posts to its website a list of those writs granted over the previous week, including a list of the granted assignments of error.
Decisions – In a wonderful tradition, the justices of America’s highest court announce its decisions orally, in open court. The author of each opinion states what the Court’s ruling is, and summarizes the holding, often reading one or more passages from the opinion. Dissenting justices may also explain their votes, sometimes going to the length of reading the dissenting opinion in full, though that happens quite rarely.
Tradition fixes the order in which the day’s decisions come down: reverse order of seniority. On the current Court, then, if there are three decisions and the majorities’ authors are Justices Breyer, Alito, and Gorsuch, Gorsuch will announce his first, followed by Alito and then Breyer. The chief justice always has the most seniority, regardless of how long he’s served on the Court, so he always goes last.
Virginia used to do things much like that, except it was in descending order of seniority, with the chief justice speaking first. Then, the Clerk of Court would stand in the well of the court. As each justice announced his or her batch of rulings, the Clerk would receive slip opinions in her hand; the court literally “handed down” rulings.
That nice touch ended in September 2015 when the court moved to rolling release dates for its opinions. From that point forward, there were no longer six opinion days per year; it could be any Thursday on the calendar except holidays. Today’s slip opinions come down electronically, and never see the inside of the courtroom.
In SCOTUS, the Court’s decisions usually arrive on Mondays when the Court opens at 10:00 a.m. When the pace gets hot in late June, the court often adds decision days, usually but not exclusively Thursdays. In the SCV, published opinions arrive on Thursday mornings, with unpublished orders coming a bit later in the day.
Clearance – In the appellate context, this word refers to a court’s issuing rulings in each case argued in a given court term, before adjourning. The U.S. Supreme Court clears its docket by the end of each June. This often leads to a cascade of decisions in the last half of that month, when the occasional drip-drip-drip of decisions becomes a torrent. You’ll likely see a disproportionate number of high-profile decisions in the last week of the Term.
On the last day of each Term – the period that begins the first Monday in October and ends in late June – the chief justice announces, after the court hands down its final rulings, “I am authorized to announce that the Court has acted upon all cases submitted to the Court for decision this Term.” This is the ceremonial ending of each Term.
To enable the Supreme Court to decide everything by the end of June, the court schedules no oral arguments after late April, until the next Term begins in October.
In a sense, the Supreme Court of Virginia once observed a clearance protocol, in that the court handed down opinions on the final day of each session week. Those opinions comprised the appeals argued in the previous session, usually seven weeks earlier, though on occasion the court might have held one or two opinions until the following opinion day. But as I noted above, the court stopped doing that in 2015, so an opinion nowadays could come down in six weeks, nine weeks, or (mercifully rarely) twenty or more. There’s no way to predict when the court will decide a given appeal.
The SCV doesn’t divide its calendar into Terms, so there’s no effort to hand down all rulings from a given session on any particular schedule. The court announces its rulings when they’re ready, and no earlier. When the court recesses for the summer at the end of the June session, plenty of appeals argued in the past few months will remain undecided.
Summary reversals – On occasion, the justices of a given court may feel that reversal is necessary but oral argument and merits briefing aren’t. This is a job for a summary-reversal process. It’s fairly common in Washington and rare, though not absent, in Richmond.
The most common form of summary order in the U.S. Supreme Court is a “GVR,” where the Court grants cert, vacates the judgment below, and remands the case, usually for reconsideration in light of a recent opinion or some other legal development. If several petitions are pending with common issues, we often see them listed in a separate section in the Monday order list, each sent back for further review.
GVR-style orders in the Virginia system occur perhaps once or twice a year. They’re nearly invisible, in that they aren’t published in any form. I don’t usually see them and as far as I know you can’t subscribe to them as you can for court opinions and other notices. They tend to pop up in habeas corpus appeals.
Philosophical balance – This category is necessarily somewhat subjective, but we have a solid base of data on which to evaluate where on the ideological spectrum each justice’s jurisprudential views lie. Note that I do not claim to know a given justice’s political views. I have never asked a single justice that particular personal question, and I don’t plan to start now.
But we can assess the most basic evidence of their philosophies: their votes and their written opinions. This calculus shows a cavernous divide in Washington and a much smaller one by the banks of the James.
SCOTUS comprises five conservative voices and four liberal ones. Centrists have no paladin on that court. In the SCV, there are five conservatives and two moderates, with no one to speak for the liberal end of the philosophical spectrum. In writing this, I realize that a court is not a representative body, in the way a legislature is.
I’ll readily acknowledge that in many case areas, it’s difficult or even impossible to define which side of the dispute is conservative or liberal. This is especially true in state court; for example, there’s no “conservative” side in a boundary dispute or a reinsurance squabble. A great many of the court’s decisions have no doctrinaire underpinnings. But enough of them do that I publish a quarterly David-Goliath Index that has, in my view, a statistically significant sample size.
In Washington, the Court gets occasional appeals with little at stake philosophically, but the justices ponder plenty of hot-button issues in which there are readily identifiable left and right perspectives. You can spot those from several miles away.
By-right review – Despite the presence of the writ process, in a handful of cases aggrieved parties have an automatic right to review, so no there’s petition stage; the parties proceed straight to briefing the merits. Here, the SCV sees a greater variety: appeals from State Corporation Commission rulings, death sentence reviews, attorney and judicial discipline.
To the best of my knowledge, only one type of appeal enjoys this privilege across the Potomac: review of a three-judge panel ruling in a district court. Thus, after a panel of three judges hands down a ruling in, say, a partisan gerrymandering dispute, the losing party may head straight to Washington and the justices must decide the appeal on the merits.
Choice of chief – Each court has a chief justice, of course, but the manner of selecting that person varies. In the federal system, when a vacancy occurs in the center chair, the president nominates a person – who can be but is not necessarily a current member of the Supreme Court – after which the Senate votes to confirm the nomination or not. The office of chief justice is thus wholly separate from the associate justices.
Here in Virginia, the court selects the chief by internal majority vote for a four-year term. This is a change from historic practice, which awarded the center chair to the justice with the longest tenure on the court, with no limit. The legislature amended the statutory process after receiving a request from the justices to do so.
I understand that the court has adopted the custom of limiting the chief justice to two terms, after which presumably he or she would move one seat aside to make room for the next chief. We’ve never seen this in practice; the first chief to serve under the current system, Leroy Hassell, died in office, and the second, Cynthia Kinser, retired from the court. By the time the current chief, Don Lemons, reaches the end of his second term, he’ll be at or near the mandatory retirement age, so it may be many years before we see this play out.