The Supreme Court, and the importance of keeping the lower courts in line

Opinion by David Friedman
May 15, 2014, 12:37 a.m.

It is a truism that the Supreme Court is not a court of error correction. It decides the important cases with wide-ranging implications for the entire country and leaves the everyday stuff for the lower courts. There’s good reason for this: Out of the nearly eight thousand cases filed in the Supreme Court every year, the Court can only hear around eighty. This means it needs to be choosy, even if the result is letting lower court decisions stand that a majority of the Court thinks are just plain wrong.

Yet sometimes it just can’t resist. And as a result, the Court has developed a tool—the summary disposition—to help deal with the judicial dilemma of wrongly decided cases with particularly egregious facts but little import for the larger development of the law.

What makes summary dispositions special is that these cases are decided without the benefit of oral argument or even a full briefing. Unlike in a normal case, where the litigants spar over the merits for several months, when the Court acts via summary disposition it simply decides based on the certiorari-stage briefs—briefs whose arguments are dedicated almost exclusively to the question of whether the case is important enough to be worthy of the Court’s review. This system has obvious drawbacks: The quality of advocacy before the Supreme Court is very high, and it typically behooves the Court to fully consider all of the legal arguments before issuing an opinion that will bind the entire country. But it has benefits too: The summary disposition process is less time-consuming and allows the Court to decide a number of “easy” cases without taking away too much from its normal docket.

The Court’s summary disposition of Tolan v. Cotton, issued just last week, demonstrates this tradeoff. As with many summary judgments, any discussion of Tolan must begin with the facts. The incident that led to the dispute in Tolan began during the early morning hours of Dec. 31, 2008, when police sergeant John Edwards saw a black SUV turn quickly onto a residential street and then park in front of a house. Suspicious, Sergeant Edwards entered the license plate number of the vehicle into his computer; unfortunately, he made a mistake—he entered “695BGK” instead of “696BGK.” Even more unfortunately, the incorrect license plate number matched that of a stolen car.

Sergeant Edwards accordingly stepped out of his car—pistol drawn—and ordered the two men who had just gotten out of the car, Robert Tolan and Anthony Cooper, to get on the ground. After protesting that the car was not stolen and that they were just trying to go home, Tolan and Cooper complied with the instructions of Sergeant Edwards. Hearing this commotion outside their home, Tolan’s parents came outside and tried to defuse the situation. They were unsuccessful.

Soon after, a second officer, Sergeant Jeffrey Cotton, arrived on the scene. Tolan’s parents again tried to explain that Tolan was their son and driving their car, but Sergeant Cotton simply told Tolan’s mother to stand by the garage. At this point, Tolan’s mother became upset and refused to move away. Sergeant Cotton thus attempted to physically escort her to the garage. Although it remains in dispute how rough Sergeant Cotton was with Tolan’s mother, both parties agree that Tolan rose off the ground and yelled at Sergeant Cotton to get his hands off his mother. In response, Sergeant Cotton immediately drew his pistol and, with no verbal warning, fired three shots at Tolan—still standing 15 to 20 feet away. One of the bullets struck Tolan in the chest, collapsing his lung and piercing his liver. Though he survived, his promising baseball career was cut short, and his injuries continue to cause him pain on a daily basis.

At issue in the case is whether the doctrine of qualified immunity applies. Without delving too far into the nuances of the doctrine, qualified immunity shields officials from liability for constitutional violations that were not “clearly established” at the time of the act. The idea is that it’s not fair, or wise, to subject officials to damages when they had no advance notice that their conduct was wrongful. In this case, the Southern District of Texas and the Fifth Circuit Court of Appeals found that Cotton did not have sufficient notice that his choice to shoot Tolan was unconstitutional at the time of the incident to hold him liable for damages. The Supreme Court disagreed, unanimously holding that Tolan should at least be able to put on evidence at trial regarding the disputed facts sketched above.

Intuitively, most would probably agree that this feels like the right result. Nevertheless, Justices Alito and Scalia still felt compelled to write a concurrence. Though agreeing with the legal reasoning of the opinion, they questioned whether it was appropriate for the Court to step into this type of fact-bound dispute—and the wider realm of “error correction.”

This objection may however miss the larger purpose of the summary disposition. By reversing cases with particularly egregious facts, such as Tolan, the Court sends a message to the lower courts. In this case, the message to the Fifth Circuit Court of Appeals—often thought to be particularly conservative—is loud and clear: The Fifth Circuit’s judges need to be more charitable to plaintiffs in applying the standard for qualified immunity. And politically, these messages go both ways; in November, the Supreme Court summarily reversed a decision denying a police officer qualified immunity that had been issued by the Ninth Circuit Court of Appeals—viewed by many as liberal—based just down the road in San Francisco.

Justices Alito and Scalia, however, are right that there are only so many of these messages to go around. There are ultimately many cases like Tolan, and the Supreme Court does not have the time to correct them all. This highlights a point that may be lost in a column that focuses on the Supreme Court: The vast majority of cases—even important cases—do not reach the Court. This makes the lower courts, especially the twelve regional courts of appeals, much more important than they often seem. And it demonstrates the value of an occasional summary disposition to keep these lower courts in line.

David Friedman and Thomas Fu are the managing editors of the Stanford Law Review. Contact them at [email protected] and [email protected].

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