Tolan v. Cotton — when should the Supreme Court interfere in

The Volokh Conspiracy

Tolan v. Cotton — when should the Supreme

Court interfere in ‘factbound’ cases?

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By Will Baude May 7 

On Monday, the Supreme Court issued a noteworthy summary

reversal in

Tolan v. Cotton, a case in which it said that the

Fifth Circuit had wrongly granted summary judgment to a

police officer in a civil rights case. (I call the

case a summary

“reversal” even though technically it only vacated the

judgment below rather than reversing it, because it’s basically

the equivalent.) I call the case noteworthy because by my

count it’s the first time in 10 years that the court has ruled

against a police officer in a qualified immunity case — (Hope

v. Pelzer and Groh v. Ramirez are the most recent previous

occasions, from 2003 and 2004).

It is also noteworthy because Justice Samuel Alito concurred in

the judgment, noting that he thought this kind of error

correction did not fit the court’s normal certiorari criteria:

[T]he granting of review in this case sets a precedent

that, if followed in other cases, will very substantially

alter the Court’s practice. … In my experience, a

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cited in C.B. v. City of Sonora, No. 11-17454 archived on October 31, 2014

substantial percentage of the civil appeals heard each

year by the courts of appeals present the question

whether the evidence in the summary judgment

record is just enough or not quite enough to support

a grant of summary judgment. The present case falls

into that very large category. There is no confusion in

the courts of appeals about the standard to be

applied in ruling on a summary judgment motion,

and the Court of Appeals invoked the correct

standard here. Thus, the only issue is whether the

relevant evidence, viewed in the light most favorable

to the nonmoving party, is sufficient to support a

judgment for that party. In the courts of appeals,

cases presenting this question are utterly routine.

There is no question that this case is important for

the parties, but the same is true for a great many

other cases that fall into the same category.

Alito was joined in his concurrence by Justice Antonin Scalia.

The odd thing about this is the contrast with Scalia’s dissent

from denial (joined by

Alito)

in Cash v. Maxwell two years

ago. There Scalia explained his willingness to take fact-specific

AEDPA cases that had been decided in a defendant’s favor:

It is a regrettable reality that some federal judges like

to second-guess state courts. The only way

this Court

can ensure observance of Congress’s abridgement of

their habeas power is to perform the unaccustomed

task of reviewing utterly fact-bound decisions that

present no disputed issues of law. We have often not

shrunk from that task, which we have found

particularly needful with regard to decisions of the

Ninth Circuit.

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cited in C.B. v. City of Sonora, No. 11-17454 archived on October 31, 2014

And on Monday, Alito again dissented from the court’s denial

of cert. in a similar AEDPA case, citing his Tolan concurrence.

So what explains Alito’s and Scalia’s willingness to take

“factbound” cases where lower courts have erroneously

granted habeas relief to prisoners, but not factbound cases

where lower courts have erroneously granted qualified

immunity to officers? I see two hypotheses:

Possibility one. Alito and Scalia think there are

different costs

to the different kinds of errors. Put crudely, they like police

officers and don’t like prisoners, so they care more about

correcting windfalls for prisoners than for the police.

Possibility

two. Alito and Scalia believe there is an unusual

epidemic of judges willfully refusing to apply AEDPA — which

justifies an unusual posture of Supreme Court review — but

don’t think there’s a comparable systematic bias in favor of

qualified immunity.

I suppose that possibility two strikes me as more likely than

one, but in either event, I think the view is mistaken.

Ultimately this is an empirical question, but I think mistaken

grants of summary judgment are probably at least as common

as mistaken grants of habeas. If the court is going to spend

time reviewing individual habeas cases to ensure that the

Ninth Circuit is following the habeas statute, it seems

reasonable for it to also spend time reviewing individual civil

rights cases to ensure that other circuits are following the

summary judgment standard.

Will Baude is an assistant professor at the University

of Chicago Law School, where he teaches

constitutional law and federal courts. His recent

articles include Rethinking the Federal Eminent

Domain Power, (Yale Law Journal, 2013), and

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34 Comments

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And, with the ink not even dry on Tolan, the 5th Circuit does it again:

http://scholar.google.com/scholar_case?case=678319...

5/11/2014 8:05 AM PST

David Woycechowsky

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cited in C.B. v. City of Sonora, No. 11-17454 archived on October 31, 2014

So,

now, the Supreme Court is going to put itself into the minds of lower

court judges as to how they view the facts?

Interpreting the law is one

thing, telling them that their view of the facts is another.

Sounds like legal big brotherism.

5/10/2014 6:49 AM PST

MeEnGaithersburg

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1 ·

Agreed with Will on this.

the court is going to take factbound cases from the 9th/6th because

they misapply the law, I see no reason to stop there. I am pretty sure

one can find outlier factbound cases in every circuit.

Even Alito's opinion agrees that there are parts of this case where the 5th

was wrong.

more interesting question is which chambers/clerk did the cert memo

for

this case, not easy to recommend something like this given the

default

rule of not being an error correcting court.

Finally, always been curious on the author of per curiam opinions,

completely done by clerk or by one of the justices?

5/7/2014 11:56 PM PST

chri1720

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"Possibility one. Alito and Scalia think there are different costs to the

different

kinds of errors. Put crudely, they like police officers and don’t

like prisoners, so they care more about correcting windfalls for

prisoners

than for the police."

What exactly are these respective windfalls?

5/7/2014 5:01 PM PST

Bernard11

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5/8/2014 5:37 PM PST

"Windfall" for the prisoner: life in prison, usually.

Windfall

for the police: needn't even defend a civil-rights case,

where legal

fees and any award of damages will be covered by

their employer anyway.

I think there are different costs here, but my

calculation comes

out the opposite way from the (hypothetical)

calculation

cs0718

cited in C.B. v. City of Sonora, No. 11-17454 archived on October 31, 2014

attributed to Scalia and Alito.

This actually reminded me quite a bit of Kyles v. Whitley where Scalia

also

complained it was unnecessary fact correction in a case where the

majority thought the violation was clear and that there needed to be

some kind of intervention to prevent lower courts from slacking in

enforcing Brady violations.

The trend had been for years to cut back on

Brady violations, often due to the Supreme Court's own decisions.

I think

this case is kind of the same.

But I do think

Justice Scalia wants to preserve finality of criminal

convictions and to

minimize liability for police officers. Therefore, his

dissents are

consistent, even if I do think he's also a touch hypocritical.

5/7/2014 4:10 PM PST

TheAmazingEmu

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Scalia

& Alito's willingness to call out the infamous Ninth Circuit on

AEDPA cases, including their factbound outlier decisions, may have

something to do with the leader of that court's thumb-in-your-eye

attitude: "They can't reverse everything," he says with a glint in his

eye.

(Heather K. Gerken, Judge Stories, 120 Yale L.J. 529, 530 (2010).)

It may also have something to do with the fact that

in AEDPA cases

some circuit courts (in particular the Ninth and the

Sixth) are issuing

factbound decisions overturning the reasonable, but

contrary, factbound

decisions of equally competent state court judges.

Finally, in Cash v. Maxwell not only did an

extremist three judge panel

contort the facts to reach the result they

wanted. But, as Scalia points

out in his dissent from cert., they

completely misapplied the Court's

clearly established holding in Napue

and other due process cases.

AEDPA is a world onto

itself, especially in the Ninth. Thus, your trying to

analogize it to

other situations where the Court is reticent to review

factbound

decisions doesn't cut it.

5/7/2014 11:15 AM PST

pvine

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2 ·

We should just admit the obvious -- judges on both sides of the aisle are

glorified political hacks with lifetime tenure.

Not only does that admission

explain a lot, it also saves a whole lot of unnecessary

posturing and

analysis.

5/7/2014 9:22 AM PST

Krychek_2

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cited in C.B. v. City of Sonora, No. 11-17454 archived on October 31, 2014

Live webcast of today's Executive Branch

Review conference, from the Federalist Society

Eugene Volokh · May 7

cited in C.B. v. City of Sonora, No. 11-17454 archived on October 31, 2014