Today the Supreme Court decided New York State Rifle & Pistol Assn., Inc. v. City of New York. The Court, per curiam, found the controversy was moot. Justice Kavanaugh agreed, but wrote separately about the Supreme Court’s current Second Amendment jurisprudence:
I also agree with Justice ALITO’s general analysis of Heller and McDonald. District of Columbia v. Heller (2008); McDonald v. Chicago (2010); Heller v. District of Columbia (C.A.D.C. 2011) (KAVANAUGH, J., dissenting). And I share Justice ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.
I agree heartily with Kavanaugh’s concurrence. And I am fan of his dissenting opinion in Heller II. But is it common for a Justice to cite his own circuit court decision by name?
Last week, Justice Kavanaugh cited another one of his circuit decisions in Ramos v. Louisiana. See FN6 of his concurrence:
That Marks rule is ordinarily commonsensical to apply and usually means that courts in essence heed the opinion that occupies the middle-ground position between (i) the broadest opinion among the Justices in the majority and (ii) the dissenting opinion. See United States v. Duvall (CADC 2013) (Kavanaugh, J., concurring in denial of rehearing en banc)
Is this practice common? I checked the other current Justices who were elevated from the Circuit Court: Gorsuch, Sotomayor, Alito, Roberts, Breyer, Ginsburg, and Thomas. I searched the Supreme Court databases with variants of this query: adv: “CADC” /s “Ginsburg, J.” (The Supreme Court sometimes uses the notation C.A.D.C. and sometimes uses CADC without the periods–the usage is inconsistent. Westlaw captures both usages with the search I provided.)
Only one other Justice cited her own Circuit Court decisions by name: Justice Ginsburg. She did so once in her concurring opinion Carlisle v. U.S. (1996):
It is anomalous to classify time prescriptions, even rigid ones, under the heading “subject matter jurisdiction.” That most basic requirement relates to the subject matter of the case or controversy or the status of the parties to it…. Center for Nuclear Responsibility, Inc. v. United States Nuclear Regulatory Comm’n, 781 F. 2d 935, 945, n. 4 (CADC 1986) (Ginsburg, J., dissenting) (questioning “profligate use” of the word “jurisdiction,” in diverse contexts, “to mean many things—from the absence of a constitutional grant of judicial power to a statutory limit on time to appeal”).
I also checked Justice Scalia’s decision. He never cited any of his CADC opinions. I welcome corrections if I missed anything.
Often, a Justice will cite a circuit court opinion by another Justice. This citation can be used in a positive or negative fashion. First, a citation signals praise of the Circuit Judge’s ruling. For example, In Hernandez v. Mesa, Justice Alito favorably cited a Kavanaugh concurrence:
Under the Torture Victim Protection Act, a damages action may be brought by or on behalf of a victim of torture or an extrajudicial killing carried out by a person who acted under the authority of a foreign state. Consequently, this provision, which is often employed to seek redress for acts committed abroad, cannot be used to sue a United States officer. See Meshal v. Higgenbotham (C.A.D.C. 2015) (KAVANAUGH, J., concurring).
Here, Alito gave the seal of approval to his colleagues work on the lower courts.
Second, a citation can signal that a Justice is being inconsistent. Justice Alito took this latter approach in NYS Rifle & Pistol. In long string cite, he stresses that then-Judge Sotomayor previously “recognized that that a claim for nominal damages precludes mootness.”
And it is widely recognized that a claim for nominal damages precludes mootness…. Amato v. Saratoga Springs, 170 F.3d 311, 317 (C.A.2 1999) (Sand, J., joined by SOTOMAYOR, J.);
I found several other examples in my searches of the negative cite. I find this usage to be passive aggressive. Circuit judges sit in very different positions than Supreme Court Justices. They are bound by different sets of precedent and rules, and need not take the same position once elevated. And of course, different cases present different facts. Indeed, Alito cited an opinion Sotomayor joined, but did not write! This barb is a stretch.
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