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Supreme Court picks its own issues
June 08, 2006 by Ross Runkel at LawMemo
Did you notice that the US Supreme Court decided two employment law cases on Monday by making them turn on an issue that the litigants did not present to the Court?
Whitman v. Department of Transportation (US Supreme Court 06/05/2006):
The litigants thought the issue was whether the Civil Service Reform Act confers federal court jurisdiction. That was the issue decided by the 9th Circuit, and that's what the parties briefed and argued. After the arguments, the Court ordered the parties to file supplemental briefs. When the case was decided, the Court said that everybody got the issue backwards (my term). The question was not whether the Civil Service Reform Act confers jurisdiction, but whether it removes the jurisdiction granted by 28 USC Section 1331.
Further, the Court indicated that this issue depended in part on whether the employee's allegations state a "prohibited personnel practice." Although both parties had already agreed that it did, the Court said it would not allow the parties to agree to jurisdiction, so that issue now has to be resolved afresh.
Mohawk Industries v. Williams (US Supreme Court 06/05/2006):
The litigants focused on whether a corporation could be an "association-in-fact" for purposes of civil RICO. I should make clear that Williams' attorney complained to the Supreme Court that this issue had not been raised properly, so I was not surprised that the Court dismissed the writ of certiorari "as improvidently granted."
The surprise was that the Court then remanded the case for reconsideration in light of Anza v. Ideal Steel Supply Corp (US Supreme Court 06/05/2006). That was a surprise because Anza raised the question of whether the defendant's substantive statutory violation was the proximate cause of the plaintiff's injury. Proximate cause wasn't briefed at all by the parties in the Mohawk case.
How to explain this?
My theory is that the Court is searching for ways to decide cases in such a way as to maximize the probability of getting a unanimous or near-unanimous vote.
I applaud the Court for its goal. After all, the Court issued a unanimous opinion in an abortion case in January. Ayotte v. Planned Parenthood (US Supreme Court 01/18/2006).
I thought the Court was right on the money in Whitman, because the litigants lost sight of how the basic jurisdiction statute works.
I thought the Court acted in a bizarre manner in Mohawk when it sent the case back to decide an issue that wasn't even on the horizon.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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