Carolyn Shapiro is an Assistant Professor of Law at Chicago-Kent College of Law, and she published an article last year titled The Limits of the Olympian Court: Common Law Judging versus Error Correction in the Supreme Court in the Washington & Lee Law Review. In her article, she shows how the Supreme Court’s certiorari process has inadvertently led to inconsistent application of some legal standards by lower courts. Additionally, she provides some logical, simple, and compelling solutions for the problem.
For well over a hundred years, the Supreme Court has struggled to reduce the number of cases on its docket. In the 1970s and 80s, for example, the Court handled around 150 opinions per term, but by pruning the types of cases that the Court must take, the docket last term produced only 75 slip opinions. Since Supreme Court jurisdiction is now almost entirely discretionary, and because the Court wants to keep the docket from getting crowded again, the Court has decided to grant cert only when the issues in the case are overwhelmingly important, there is a circuit split on the issue, or when the issues affect matters of national interest. The explicit goal of the court is to choose cases that will obviously be precedent for future cases because it will contribute to uniformity in the law. The Court rarely takes a case merely to correct an error by a lower court because doing so does not lead to a new rule of law. Rule 10 of the Supreme Court details the “Considerations Governing Review on Certiorari” and it specifically states, “A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.” Some commentators have labeled the Supreme Court the “Olympian Court” because it likes to pronounce rules of law from on high but rarely likes to get involved in the nitty-gritty of error correction.
Since the Court does not normally take cases just to correct the errors of lower courts, some areas of the law are in chaos. If rules of law are misapplied too often, then the definition of the rule itself becomes uncertain. Professor Shapiro convincingly argues that areas of the law that are primarily governed by “standards” are more likely to become chaotic than areas of the law governed by “rules.” A “rule” is a legal directive where the decisionmaker must reach specific outcomes if triggering facts are present. A “standard” gives the decisionmaker more discretion to consider all relevant factors, such as facts, policy issues, legal principles, and the rights of various parties. An example of a rule is that a police officer may always order a passenger out of a car during a routine traffic stop. Maryland v. Wilson, 519 U.S. 408, 415 (1997). “An example of a standard is that a court should grant summary judgment if, taking all inferences in favor of the non-moving party, a reasonable jury could not find for that party.” Shapiro at 288 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
Because of the discretion that courts have when applying standards, it is more likely that areas of law governed by standards will have more inconsistencies than areas governed by rules. Furthermore, inconsistencies are more likely to develop in areas of law that are fact-intensive because courts can easily differentiate prior case law based on the facts, even if the factual differences are minor. Once inconsistencies develop in a particular area of law, if the body of law is large, then the problems can multiply. With a large body of law, it is difficult or impossible for a court to locate all relevant cases. Given the impossible task of locating all factually analogous cases, a court may intuitively decide the outcome of the case then locate case law that supports the desired result. This is called “selective search” (or confirmation bias), and Professor Shapiro provides compelling evidence that this is exactly how courts cope with the inconsistencies in some areas of law. Furthermore, courts may fall prey to “task interference”–the tendency to spend more time working on interesting or difficult cases than time working on run-of-the-mill cases. If there is a large body of law related to the case, then it is likely a mundane case, so it likely gets less attention than the more interesting cases.
Inconsistencies in the law (errors) are likely to occur in areas of law that are governed by standards, that have a large amount of precedent, that involve fact-intensive cases, or when courts view the cases as relatively uninteresting. The Supreme Court, however, does not like to take cases simple to correct errors, and these inconsistencies are left to multiply unchecked. By taking cases where the lower court correctly announced the standard but erroneously applied it, the Court could reduce some of the inconsistencies in the law because lower courts could use the Supreme Court’s application of the standard to clarify their understanding of the standard. As shown above, however, the Court rarely takes cases just to apply a standard. Furthermore, the Court often declines to apply standards to the facts even in cases where the Court announces the standard. Professor Shapiro provides examples where the Court announces a standard but then declines to apply it. She provides other examples where the Court does apply a newly announced standard. There seems to be no rhyme or reason when the Court will apply a standard, and she suggests that the Court is simply unaware that applying the standard is extremely valuable to lower courts.
Professor Shapiro logically recommends that the Supreme Court apply newly announced standards whenever possible. She also recommends that the Court begin to take cases to correct inconsistencies in standards-based areas of law–despite the Court’s reticence to be an error-correcting chamber. The Court could help lower courts by taking cases where it can do one or more of the following–analogically anchor a standard to a particular fact pattern, signal the importance of a particular segment of the law, or refine a standard by closing in on a rule or identifying key criteria of the standard.
The common law utilizes an analogical reasoning process where courts treat factually similar cases alike. A standard is often expressed in general (or even vague) language, so it is usually difficult or impossible to analogize a case to a standard. Prior cases, however, are perfectly suited for analogizing. The Supreme Court can analogically anchor a standard by deciding a case (or series of cases) that lower courts can then use as “fixed points for analysis.” Professor Shapiro argues that analogical anchoring can combat “selective search” because lower courts must make their decisions consistent with the fixed points of Supreme Court precedent.
When the Court determines that an area of law is either overly inconsistent or application of a standard is headed in the wrong direction, then the Court can take cases that signal this to the lower courts. In the 1986 term, for example, the Court decided three cases related to summary judgment (Matsushita, Liberty Lobby, and Celotex) that clearly signaled to lower courts that summary judgment was being denied too often. If, and when, the Court thinks that an area of law is overly inconsistent, then clearly saying so would send a strong signal to lower courts to pay more attention to that area of law.
Finally, the Court can help resolve inconsistencies in the law by taking cases that close in on a rule or identify key criteria of a standard. The trend in common law is to, whenever possible, gradually refine principles into standards and standards into rules. Even when the Court decides a case without announcing a new rule or standard, the decision itself contributes to the gradual movement towards a rule. If the Court were to identify key criteria within a standard, for example, it would assist lower courts to apply that standard. Professor Shapiro uses BMW of North America, Inc. v. Gore, 517 U.S 559 (1996), as a strong example of the Court identifying key criteria without actually creating a new rule of law. In Gore, the Court instructed lower courts to especially look at three criteria when determining if punitive damage awards violated due process guarantees–1) “the degree of reprehensibility of the defendant’s conduct,” 2) the ratio between punitive and compensatory damages, 3) and the “civil or criminal penalties that could be imposed for comparable misconduct.”
If the Supreme Court were to follow Professor Shapiro’s advice and start granting cert to cases in an attempt to fight inconsistent application of standards, then many areas of law would benefit. She provides a thorough example showing how application of the McDonnell-Douglas burden-shifting standard for summary judgment in employment discrimination law is completely unpredictable. Her suggestions for changing the Supreme Court’s cert criteria would likely help fix the inconsistencies in this area of law and other standards-based areas of law.
