The Supervisory Power Of The Supreme Court As A Form Of Virtue Signaling

Hunter v. United States was not on my radar screen. But this may be one of the most unexpectedly fascinating cases of the year. The question presented is simple enough. In what cases can a defendant escape a knowing and intelligent waiver of appellate rights.

The top-line vote was 8-1, though as I noted yesterday, the majority splits 2-3-3. Justice Kagan and Chief Justice Roberts were squarely in the majority. Justice Gorsuch, joined by Justices Sotomayor and Jackson, tried to expand the majority opinion. Justice Kavanaugh, joined by Justices Alito and Barrett, felt compelled to say the majority opinion was actually more narrow. This was hardly a usual 8-1 decision.

The dissent by Justice Thomas raised many important points that were completely ignored by the majority. Justice Barrett wrote a partial rejoinder that was very unsatisfying.

Justice Thomas points out how the majority creates an exception to the appeal waiver doctrine out of thin air. Justice Kagan does not rely on any law, contract-law principle, or common law rule. Rather, the Court could only rely on the so-called “supervisory power.” But as Professor Barrett persuasively explained in a law review article two decades ago, this sort of power is a fiction without any grounding in law. Justice Frankfurter explained in McNabb v. United States (1943) that the supervisory power was based on general “considerations of justice not limited to the strict canons” of law. In other words, no law.

What then is the basis to create the exception? In short, virtue signaling. The Court is afraid how people will see the judiciary. This sort of institutionalism is at the cornerstone of Chief Justice Roberts’s approach to judging, but it has no basis in law. Justice Thomas, as usual, is the only member of the Court willing to say the uncomfortable part out loud.

The Court, however, fails to identify any basis in law for its exception. It identifies no constitutional text, statute, or Federal Rule of Criminal Procedure that even suggests its miscarriage-of-justice exception. And, it identifies no established common-law or equitable doctrine that resembles it.The Court instead grounds its exception in the need to avoid “bring[ing] the judicial system into disrepute.” Ante, at 1, 11. Because federal courts have a “role . . . in approving and implementing appeal waivers,” the Court argues, this Court must create appropriate rules for enforcing them, which should advance the court system’s own “‘institutional interest.'” Ante, at 8–9. 9

Of course, the Court’s desire for a particular legal rule does not give it the right to create it. “Our duty is to apply the law, not to make it.” Pine Grove v. Talcott, 19 Wall. 666, 677 (1874). Thus, concerns about public perception of the judiciary provide no justification for the Court’s decision. The power to change the law to avoid outcomes that the people do not like “lies with the people, and not with the judiciary.” Ibid.

Justice Kagan was petrified of how people would see the court if some judge imposed a sentence based on race, sex, or some other prohibited characteristic. I think the response to such misbehavior would be through the judicial misconduct process or even impeachment. Moreover, if there was an actual miscarriage of justice, I would think political pressure could be brought on the executive branch to modify the terms of sentence or perhaps even provide a presidential commutation. The political branches are capable of dealing with bad situations. The answer does not lie in the courts making stuff up.

As for the supervisory power, Justice Thomas responds directly to Justice Barrett:

JUSTICE BARRETT, for her part, adopts a sounder methodology. See ante, at 1 (concurring opinion). But, in my view, the common-law-of waiver principles she invokes cannot justify this decision either for several reasons. First, if today’s decision could be justified as an act of common-law finding rather than policymaking, one would expect to find a more robust tradition of decisions applying a similar rule in similar situations. Yet, neither JUSTICE BARRETT nor the Court can point to any. See infra, at 22–23. Second, JUSTICE BARRETT cites authorities explaining that certain rights may never be waived. Ante, at 2; see infra, at 22. That general principle is true as far as it goes. But, common-law doctrines require rules with identifiable content for judges to apply, not only general principles. It is not entirely clear how the general principle that some rights cannot be waived leads to the Court’s granular rule under which appeals can be waived, but those waivers become void if any of four specific factual scenarios later occur at sentencing. Third, this body of law precluded waivers of certain procedures that implicated the “substantial” features “of the legal tribunal” or the “fundamental mode of its proceeding.” R. Bowers, Law of Waiver §397, p. 394 (1914). It is not clear to me that appeals of sentencing errors—appeals that did not even exist until 100 years after the founding and that must be asserted by the defendant—are sufficiently fundamental to criminal procedure for these doctrines to have any purchase. In any event, Hunter never developed an argument along these lines, which may explain why the Court, on my reading, declined to adopt it.

I’ve read and re-read Justice Barrett’s short concurrence. I almost get the sense that she blinks. She knows Justice Thomas is right, and agrees with him, but finds some way to distinguish this case to avoid a “miscarriage of justice.” In other words, Justice Barrett wouldn’t want the judiciary to be viewed in such a negative light. But again, this approach to judging amounts to little more than virtue signaling.

Justice Kagan’s opinion to avoid a “miscarriage of justice” is a throwback to the Warren Court where the Justices actively made policy. But as Justice Thomas explains, “policy concerns are not rules of decision in courts of law.”

Justice Alito’s vote in this case is baffling. He might think the exception is so narrow as to have no real effect.

Finally, it appears that the Court lacks Article III standing. Justice Thomas observes:

3Because Hunter cannot say whether he will ever be prescribed ob-jected-to medication, he has conceded that his claim is not ripe under binding Fifth Circuit precedent. Hunter may well lack Article III standing under our precedents. The Court nonetheless proceeds to the merits without addressing its jurisdiction.

Yes Justice Kagan and her colleagues leap over these procedural problems to engage in policy-making. Where is Justice Barrett on this jurisdictional point?

Kudos to Lisa Blatt. She won two cases on Friday, Hunter and the Rooker-Feldman case. Very different analyses, both victories.