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Some of the U.S. Supreme Court’s most historic decisions-including the Steel Seizure, the Nixon Tapes and the Nazi Saboteurs cases-have been issued without benefit of a court of appeals ruling. In those cases, the Supreme Court exercised its little known, but “extraordinary power” ( Ohio v. Price, 360 U.S. 246, 247 (1959)) to grant certiorari before the court of appeals has rendered judgment. Recently, the Supreme Court granted certiorari before judgment in United States v. Fanfan, 125 S. Ct. 12 (2004), to decide the constitutionality of the Federal Sentencing Guidelines, and in Gratz v. Bollinger, 537 U.S. 1044 (2003), to decide the constitutionality of the University of Michigan’s use of affirmative action in its undergraduate admissions policies. In January, the Supreme Court denied a petition for prejudgment certiorari in Hamdan v. Rumsfeld, 125 S. Ct. 972 (2005), a case challenging the federal government’s right to try Guantanamo Bay detainees before a military commission. Patterns emerge from prejudgment review Standards for prejudgment certiorari. Once a case is docketed in the court of appeals, federal law allows petition for certiorari “at any time before judgment” has been rendered. 28 U.S.C. 2101(e). Supreme Court Rule 11, however, clearly states that such a petition will be granted only when the case is of “such imperative public importance” that it warrants a departure from “normal appellate practice” and “require[s] immediate determination in this Court.” What does it take to meet this high standard? Cases granting prejudgment review have generally involved one or more of the following critical factors: significant foreign policy decisions, national emergencies, separation of powers concerns-particularly those involving extraordinary assertions of executive authority by the president, and important issues that are related to a companion case already before the court. See generally J. Lindgren, W. Marshall, The Supreme Court’s Extraordinary Power to Grant Certiorari before Judgment in the Court of Appeals, 1986 Sup. Ct. Rev. 259 (1986). Foreign Affairs. Foreign affairs has always been an important factor in granting prejudgment certiorari, from the very first case in which the Supreme Court used this power. The Three Friends, 166 U.S. 1 (1897) (involving seizure of a ship purportedly linked to Cuban revolutionaries preceding the Spanish-American War). In Ex Parte Quirin, 317 U.S. 1, 18 (1942), the famous case authorizing trial by military tribunal (and ultimate execution) of Nazi saboteurs captured off the U.S. East Coast, the court granted prejudgment certiorari because the case involved an immediate, critical question about the scope of military authority during war. More recently, in Dames & Moore v. Regan, 453 U.S. 654 (1981), the court granted certiorari before judgment to address President Carter’s authority to enter an international agreement concerning the Iranian hostage crisis, including his right to suspend claims against Iran pending in U.S. courts. An impending deadline in the agreement compelled the high court’s immediate attention. The case thus involved an international crisis, the president’s authority to conduct foreign affairs, separation of powers, and the administration of justice in federal courts. As the court put it, “[t]he questions presented by this case touch fundamentally upon the manner in which our Republic is to be governed.” Id. at 659. Hamdan would seem to fit this category. The petitioner emphasized the case’s “international dimension,” since the outcome could affect nationals of numerous other countries being held at Guantanamo Bay for possible trials before military tribunals. Pet. for Cert. 4-5. But the United States vigorously opposed certiorari before judgment-and such petitions are rarely granted over government opposition-arguing that the Supreme Court would benefit from a decision by the U.S. Circuit Court for the District of Columbia, which could expedite its review. Separation of Powers. The court has also granted certiorari before judgment to address critical separation of powers issues. United States v. United Mine Workers, 330 U.S. 258 (1947), and Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952), involved nationwide strikes in vital industries. United Mine Workers concerned the federal government’s seizure of many of the nation’s bituminous coal mines, when a strike threatened “a national crisis.” 330 U.S. at 265. Youngstown challenged the president’s authority to take possession of many of the nation’s steel mills “to avert a national catastrophe which would inevitably result from a stoppage of steel production” during the Korean War. 343 U.S. at 582. Notably, justices Felix Frankfurter and Harold Hitz Burton dissented from the Youngstown grant of certiorari before judgment, something no justice had done before with respect to any grant of certiorari: “The constitutional issue which is the subject of the appeal deserves . . . all of the wisdom that our judicial process makes available. The need for soundness in the result outweighs the need for speed in reaching it.” 343 U.S. at 938. Separation of powers was also at the heart of the court’s intervention in United States v. Nixon, 418 U.S. 683 (1974), which rejected President Nixon’s claims that a court could not compel disclosure of recordings of his confidential conversations with advisors and that the “separation of powers doctrine precludes judicial review of a President’s claim of privilege.” Id. at 703. Immediate review was warranted because of the extraordinary assertion of presidential power and the challenge to the authority of the federal courts. Companion cases. Certain cases that may not involve matters of “imperative public importance” may nonetheless warrant certiorari before judgment because they add something significant to the issues already before the Supreme Court in a companion case. For example, the court granted cert before judgment in Bolling v. Sharpe, 347 U.S. 497, 498 (1954), a companion case to Brown v. Board of Education, 344 U.S. 1 (1954), because it enabled the Court to hold that desegregation was required not only of states under the 14th Amendment but also of the District of Columbia under the Fifth Amendment. The two most recent cases in which the court granted certiorari before judgment fall in this category. Gratz involved the University of Michigan’s undergraduate admissions process, and the court had already granted certiorari in Grutter v. Bollinger, 530 U.S. 1043 (2002), to review the university’s law school admissions. Gratz enabled the court to “address the constitutionality of the consideration of race in university admissions in a wider range of circumstances.” 539 U.S. at 260. In Fanfan, the government filed its application for prejudgment certiorari at the same time as its post-judgment certiorari application in U.S. v. Booker, 125 S. Ct. 11 (2004). The court’s recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), had thrown the federal courts into disarray by implicitly questioning the constitutionality of the federal sentencing guidelines, which required judges to impose criminal sentences based in part on their own fact-finding. In Booker, the trial court followed the guidelines, squarely raising the constitutional issue, and in Fanfan, the trial court refused to follow them in sentencing the defendant, presenting the question of what trial courts should do absent mandatory guidelines. The tradeoff in certiorari before judgment Pros and cons of cert before judgment. Certiorari before judgment involves a tradeoff between expeditious resolution of critically important cases by the Supreme Court and the benefit of a court of appeals decision that carefully analyzes the issues. The court generally favors the latter, occasionally prompting it to deny prejudgment certiorari even in cases of truly pressing need and historic consequence. In Cooper v. Aaron, for example, the Arkansas governor had blocked implementation of a court-ordered school desegregation plan in the wake of Brown v. Board of Education. The court denied a petition for certiorari before judgment filed by Thurgood Marshall, 357 U.S. 566 (1958), despite the obvious importance of the issues and the need for resolution before the school year began, preferring to let the 8th Circuit hear the case first. The court’s decision may also reflect a reluctance to grant prejudgment certiorari to review actions of state government. 1968 Sup. Ct. Rev. at 295-97. An expedited court of appeals decision may be a better way to handle important, time-sensitive cases. The case can still go to the Supreme Court, which will have the benefit of the appellate court’s consideration of difficult issues. As Frankfurter noted in his Youngstown dissent, “the Nation is entitled to the substantial value in an intermediate consideration of the issue by the Court of Appeals.” 343 U.S. at 938. Another benefit of the normal appellate process is that some cases may settle while pending in the court of appeals. In Youngstown, a possible settlement of the steel strike collapsed when the Supreme Court granted certiorari before judgment. On the other hand, prejudgment certiorari offers advantages as well. Expedited treatment by a court of appeals may not materially aid the Supreme Court. As Lindgren and Marshall note, “[a] rushed schedule in two appellate courts may not produce a more considered opinion than a somewhat longer deliberation in one court.” 1968 Sup. Ct. Rev. at 282. In addition, in some cases there is a risk that an opinion by any court other than the Supreme Court would be disregarded. It was far from certain that President Truman would have abided by an appellate court decision in the steel seizure case, or that Nixon would have honored an appellate court order to release the confidential tapes. The Supreme Court’s intervention through prejudgment certiorari resolved the issue definitively in each case and protected the authority of the judicial branch. Aaron S. Bayer is the chairman of the appellate practice group at Wiggin & Dana of New Haven, Conn. He can be reached at [email protected].

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