The Relative Importance of Inter-Circuit Conflict and State-Circuit Conflict as Cert Criteria

By Michael Dorf

As the Supreme Court waits for a Circuit split that may never arrive before granting certiorari in a same-sex marriage case, it is worth noting that the Court's role in ensuring the uniformity of federal law occasionally manifests itself in a different way: sometimes the Court resolves conflicts between a state court and the courts of the circuit that encompass that state. Supreme Court Rule 10(a) expressly recognizes this sort of interest, listing state-circuit conflict just after inter-circuit conflict as a "consideration" in the decision whether to grant cert. (The Rule lists "considerations" rather than "criteria" because, as the Rule itself states, the factors are mere guidelines; granting or denying certiorari remains a matter of unreviewable discretion.)

The main focus of Rule 10 appears to be national uniformity as such. Thus, 10(a) lists conflict between a federal appeals court and "a state court of last resort," including a state court of last resort in a state that does not fall within the circuit in question. And Rule 10(b) lists inter-state conflict as another certiorari consideration.

The focus on uniformity as such makes some sense. At least since Justice Joseph Story's 1816 opinion for the Court in Martin v. Hunter's Lessee, maintaining the uniformity of federal law has been understood as a key function of the Court. Famously, Justice Oliver Wendell Holmes, Jr. opined that this function was more important than reviewing acts of Congress for constitutionality. He stated: "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.”

Uniformity as such is important, especially in cases with commercial implications. Much of the impetus for the 1787 Constitutional Convention, after all, was the concern that the central government needed authority to establish uniform rules governing commerce, and this remains a concern today. Congress often legislates precisely for the purpose of easing the burden on commercial actors who would otherwise be subject to fifty regulatory regimes. When conflicts arise concerning the meaning of federal law, failure to resolve those conflicts undermines the purpose of the federal law. The Constitution and federal law more generally thus serve partly as guarantors that the nation will be a kind of free trade zone.

But many instances of conflicting interpretations of federal law do not present a substantial risk of inconsistent obligations or costly measures at state borders. Just as we are accustomed to states themselves having different laws, so a federal system can tolerate some measure of disuniformity with regard to the meaning of federal law from one state to another (or one circuit to another), so long as the effects are largely felt on a state-by-state (or circuit-by-circuit) basis.

To be sure, disuniformity in the interpretation of basic rights (like the right to free speech, the right to marry, or the right to equal protection) raises troubling moral questions. A set of national rights ostensibly sets forth a standard for the bare minimum that is owed to citizens. Disuniformity with respect to rights will thus frequently mean that one or more jurisdictions are falling below that minimum.

But even that concern, while important, may be less important than the need to prevent the imposition of directly conflicting legal obligations. Consider that under the jurisprudence of the European Court of Human Rights (ECHR), states may be given a "margin of appreciation" in recognition of differing cultural, historical, or other differences that obtain. The basic idea is this: Rights set an absolute floor below which no state may fall but not every state must comply immediately with all of the other implications of rights insofar as they entail obligations above that floor.

There is currently no version of the margin-of-appreciation doctrine in U.S. constitutional law, but in the days before more-or-less full incorporation of the Bill of Rights against the states, there was. At that time, principles of federalism were thought to give the states greater leeway in complying with the obligations of the Fourteenth Amendment's Due Process Clause than was given to the federal government under the enumerated rights of the Bill of Rights. The pre-incorporation doctrine was justified in terms that were broadly parallel to the ECHR's margin-of-appreciation doctrine.

Accordingly, it is at least possible to conceive of a regime in which state-by-state or circuit-by-circuit disuniformity in the interpretation of federal constitutional rights persists for some time, without doing violence to the very idea of a national constitution. By contrast, conflicting interpretations by a state court of last resort and the federal appeals court for the circuit in which that state is located present an urgent need for resolution by the SCOTUS.

Consider an example. Suppose that the Sixth Circuit has ruled that some new form of investigative activity--let's call it "passive brain wave monitoring" or PBWM--amounts to a "search" within the meaning of the Fourth Amendment, thus requiring a warrant based on probable cause, but that the Ohio Supreme Court has held that PBWM is not a search within the meaning of the Fourth Amendment. (As I explained in my last post, a federal appeals court ruling does not bind state courts as a matter of precedent.) Now suppose that you are the Chief of Police of Cleveland. Do you invest in expensive PBWM technology? If your department already owns PBW monitors, do you instruct your officers that they may deploy the devices without seeking warrants? If they do, the evidence obtained will be admissible in the Ohio state courts, but could also subject the city to civil liability in federal court. (I assume that individual officers would have qualified immunity because the conflict between the Sixth Circuit and the Ohio Supreme Court means that the unconstitutionality of warrantless PBWM is not "clearly established." However, municipalities sued for unconstitutional policies do not have qualified immunity, even if the unlawfulness of the policy was not previously clearly established.) Any particular instance of PBWM will be either lawful or unlawful based on whether a state case or a federal case wins the race to judgment. (I omit discussion of some complications introduced by the Younger abstention doctrine, but jurisdiction afficianados can address them as a fun exercise for themselves!) The conflict between the Sixth Circuit and the Ohio Supreme Court over this question of federal constitutional law puts some officials in Ohio in a very difficult position in which their actions are simultaneously lawful and unlawful, depending on which system of courts they end up in. Thus, the conflict cries out for Supreme Court resolution.

Can we imagine circumstances in which same-sex marriage is simultaneously legal and illegal in a particular state? Particular couples who obtain federal court orders entitling them to marry would generally be able to rely on those orders to establish their entitlement to marry in any subsequent litigation in state court, because, (as I also explained in my last post) although lower federal court judgments do not bind state courts as a matter of precedent, they do have preclusive effect with respect to the same parties. However, because the SSM litigation has mostly not proceeded via class actions, in most states, the same-sex couples who marry will not do so pursuant to a federal court order in a case to which they were parties.

Consider a state in which a federal appeals court has ruled that a small number of individual couples has a federal constitutional right to marry, and that in response to that ruling, the governor or state attorney general instructs county clerks to begin issuing marriage licenses to same-sex couples. Now suppose that at some later point a member of one of those couples is prosecuted for some crime and the state seeks to compel his husband to testify against him. The husband invokes the spousal privilege but the state courts reject it based on the view that two men cannot be married under state law, rejecting the federal appeals court's determination that there is a constitutional right to same-sex marriage. The ruling is affirmed by the highest court of the state. Presto! We have a conflict between a state court of last resort and a federal appeals court encompassing that state.

Will it happen? Perhaps not. As I noted in my last post, with even the South Carolina Supreme Court charting a moderate course on same-sex marriage, perhaps there will never be another ruling by a federal appeals court or a state high court rejecting a constitutional right to same-sex marriage. But even in that event, the broader point stands: State-federal conflicts can be more urgent than circuit splits.