When Court of Appeals Decide Issues Pending Before the Supreme Court

On October 7, the Supreme Court heard oral arguments in Chiles v. Salazar. This case will decide the constitutionality of Colorado’s ban on conversion therapy. A decision in that case is expected at some point by the end of June.

As the Supreme Court deliberates on this issue, conversion therapy laws are still on the books in other states. For example, Catholic Charities of Jackson v. Whitmer presents a challenge to Michigan’s ban on conversion therapy. The District Court upheld the law, and an appeal was docketed at the Sixth Circuit in February 2025. The Supreme Court granted cert in Chiles on March 10, 2025. In a joint motion, the Defendants asked the Sixth Circuit to put the case on hold, while the Plaintiffs asked the Sixth Circuit to move forward in the ordinary course.

The case was argued before the Sixth Circuit on October 23, about two weeks after the Supreme Court heard argument in Chiles. And two days ago, on December 17, a divided panel of Sixth Circuit found the conversion therapy law was unconstitutional. Judge Kethledge wrote the majority opinion, which Judge Larsen joined. Judge Bloomekatz dissented. I will put aside the merits for now.

Judge Kethledge explained why the majority was deciding the case, even as Chiles was pending. He frames his decision in terms of the federal court’s unflagging duty to exercise jurisdiction:

The defendants also argue that we should forbear from deciding this appeal and instead simply await the Supreme Court’s decision in a pending case that presents the same issue as the one here. But the Supreme Court has repeatedly affirmed that “a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.”

Moreover, this case involves a request for a preliminary injunction, which is time sensitive:

And orders granting or denying a preliminary injunction are by definition time-sensitive. Their effect is immediate, because they set the status quo during the case’s pendency—only to be superseded months or years later by the court’s final judgment. Meanwhile, the Supreme Court’s decision could come as late as the end of June 2026; and the plaintiffs make a strong claim that the status quo here—they wish to speak in a certain way, but cannot—violates the federal Constitution.

Finally, Judge Kethledge suggests his opinion might actually help the Supreme Court’s deliberations:

Nor would our decision intrude in the slightest upon the Supreme Court’s work; to the contrary, the Court prefers to have more circuit-court opinions before deciding an issue, rather than fewer. We see no reason to sit on our jurisdiction in this appeal—so we proceed to exercise it.

Judge Bloomekatz’s dissent addressed the abeyance in depth.

I am aware of no case where we have raced to decide an appeal when the Supreme Court has argued essentially the same case before we have. I would not make this the first. In forging ahead despite Chiles, the majority opinion appears to break new ground. Our general practice is to wait for the Supreme Court’s guidance when it is slated to decide a case that will govern our analysis, especially when the Supreme Court’s review is further along than ours. [FN2] Our sister circuits do the same. [FN3] The majority opinion does not cite to a single example where we pushed forward and resolved an appeal in circumstances like these.

Bloomekatz writes further that previous courts that held cases in abeyance did not violate their unflagging duty to exercise jurisdiction:

Is the majority opinion saying that each time we held a case pending a Supreme Court decision we abandoned our “unflagging” duty? That is quite an indictment of our well-settled practice, our sister circuits’ practice, and our broad power to order abeyance.

I have been tracking this issue for some time. In short, federal courts of appeals have adopted inconsistent practices. Here are several examples I have written about.

First, let’s consider the Obamacare litigation. On August 12, 2011, the Eleventh Circuit found that the individual mandate was unconstitutional. The cert petition in NFIB v. Sebelius was filed on September 28, 2011. At that point, there was a circuit split between the Eleventh Circuit and the Sixth Circuit, so everyone knew this case was headed to the Supreme Court. Yet other courts plowed on. On September 8, the Fourth Circuit dismissed the challenges to the ACA. Two weeks later, on September 23, 2011, the D.C. Circuit heard oral argument in Seven Sky v. Holder. This panel, which included Judges Laurence Silberman and Brett Kavanaugh, decided the case on November 8, 2011–again, after the cert grant. As I explained in my first book, Unprecedented, Judge Kavanaugh’s opinion in that case helped shape the government’s taxing power argument before the Supreme Court, and ultimately influenced Chief Justice Roberts’s saving construction.

Second, a similar dynamic occurred in the confederate license plate case. On March 23, 2015, the Supreme Court heard oral argument in Walker v. Texas Division, Sons of Confederate Veterans. This case considered whether Texas could deny a special vanity plate to the Sons of Confederate Veterans. On December 11, 2012, the Second Circuit heard oral argument in Children First Foundation, Inc. v. Fiala. This case presented a very similar case, in which New York denied a “Pro Life” vanity plate. On May 22, 2015, the Second Circuit ruled for New York. The Supreme Court ruled on June 18, 2015. Ultimately, Justice Alito’s Walker dissent cited Fiala. At the time, I was critical of the Second Circuit’s post-cert decision. Here, this case was argued by the Second Circuit after the Supreme Court oral argument, and decided before the Supreme Court rule.

Third, there was overlap between the Supreme Court and the Fourth Circuit in the travel ban litigation. On February 15, 2018, the en banc Fourth Circuit declared Travel Ban 3.0 unlawful. But the Supreme Court had already granted cert in Trump v. Hawaii on January 19, 2018. Argument would be held on April 25, 2018. Perhaps the Fourth Circuit’s opinion offered some of the Justices alternate arguments to consider. Indeed, one commentator praised this aspect of post-cert circuit opinions. At the time, I described this decision as a judicial “amicus brief.” That is, another document to influence the Supreme Court justices.

Fourth, the Fifth Circuit has adopted inconsistent abeyance practices in abortion cases. Roe‘s “ad hoc nullification machine” affects all facets of federal court jurisdiction. Consider the lower court litigation in Dobbs. The Fifth Circuit panel heard oral arguments on October 7, 2019 (Higginbotham, Dennis, and Ho). Three days earlier, certiorari had been granted in June Medical from Louisiana. One of the questions presented in the Louisiana case was whether third-party standing was permissible. In the Mississippi Case, the Plaintiffs included “Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors.” Dobbs case raised the same third-party standing issues that were presented in June Medical. There were no individual plaintiffs in Dobbs. The Fifth Circuit Dobbs panel did not hold the case in abeyance. Instead, it resolved the case barely two months later on December 13, 2019. June Medical would be argued on March 4, 2020.

Fifth, the Fifth Circuit found the CFPB unconstitutional on the same day Seila Law was argued. What a coincidence! On Tuesday, March 3, at 10:00 a.m., the Supreme Court heard oral arguments in Seila Law v. LLC. That case considered the constitutionality of the CFPB’s structure. (I analyzed the arguments here.) At some time that same day (I am not sure the exact time), a divided Fifth Circuit panel (Higginson and Higginbotham, with Smith in dissent) decided CFPB v. American Check Cashing. This case upheld the constitutionality of the CFPB’s structure. At the time, I wrote:

Now, the Justices can consider the Fifth Circuit opinion, without any substantive response. Issuing the decision the day of arguments, and before the Justices’ conference, is the worst possible option. It would have been better to drop the opinion last week, so the parties could at least talk about it before the Court.

A few week later, the en banc Fifth Circuit sua sponte vacated American Check Cashing, so it had little impact on Seila Law.

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To summarize, the practice here is inconsistent. In the Obamacare litigation, the D.C. Circuit decided the case after the Supreme Court had already granted cert in NFIB, but before Supreme Court oral argument. In the license plate case, the Second Circuit argued the case before the Supreme Court, and decided it after Supreme Court oral argument. In the travel ban litigation, the en banc Fourth Circuit ruled after the Supreme Court had already granted cert, but before Supreme Court oral argument. In in Dobbs, the Fifth Circuit heard oral arguments after the cert grant in June Medical, and argued the case before Supreme Court oral argument. In the CFPB case, the Fifth Circuit upheld the structure of the agency on the same day as Supreme Court oral argument.

I am not aware of another case where the lower court argued and decided an issue  after a Supreme Court cert grant and oral argument.

Please email me if I’m missing any other relevant cases.