← Is Heller Being Narrowed From Below?
Today’s orders list provided an especially clear instance of an attempted Supreme Court signal. In Hittson v. Chatman, Justice Ginsburg, joined by Justice Kagan, concurred in the Court’s denial of certiorari in a habeas matter. In effect, Ginsburg told the Eleventh Circuit how to rule in a pending case. But as with many other potential signals, Ginsburg’s message should perhaps be taken with a grain of salt.
Although the Eleventh Circuit clearly erred in declining to apply Ylst, I concur in the denial of certiorari. The District Court did “look through” to the last reasoned state-court opinion, and for the reasons given by that court, I am convinced that the Eleventh Circuit would have reached the same conclusion had it properly applied Ylst. See Hittson v. Humphrey, 2012 WL 5497808, *17– *25 (MD Ga., Nov. 13, 2012). Moreover, an en banc rehearing petition raising the Ylst issue is currently pending before the Eleventh Circuit. See Wilson v. Warden, No. 14–10681. That petition affords the Eleventh Circuit an opportunity to correct its error without the need for this Court to intervene.
This is a pretty clear attempt at sending what I’ve been calling a signal. Without going through the delay and hassle of issuing a conventional precedent on the merits, Justice Ginbsurg has fairly explicitly told the Eleventh Circuit what to do in a pending case. From one standpoint, Ginsburg’s opinion can be viewed as an irregularly filed amicus brief in support of en banc in the Eleventh Circuit. But she actually did more than that, since she also strongly suggested that, if en banc reversal isn’t forthcoming, then she and at least one additional colleague will be prepared to vote for certiorari in that very case.
Yet it’s hard not to notice that the only two justices who participated in this signal—Ginsburg and Kagan—were also the only two justices who didn’t join the Court’s opinion in Richter. (Justice Ginsburg concurred in the judgment and Justice Kagan didn’t participate in the case at all.) So the Eleventh Circuit will have to consider whether it should take Ginsburg’s attempted signal with a grain of salt. Perhaps Richter enthusiasts on the Court think that the Eleventh Circuit has it exactly right. Perhaps they even hope that Ylst will be narrowed from below in more circuits or, if cert is granted, overruled.
Hittson is interesting in part because it provides a small test of how signaling might work out in practice. Will the Eleventh Circuit comply–and acknowledge that Justice Ginsburg’s opinion influenced its decision to do so? Or, if the Eleventh Circuit sticks to its guns, will the Court actually grant cert and reverse?
It’s also interesting to wonder what the other justices thought of Justice Ginsburg’s concurrence in the denial of certiorari. Did any consider joining or responding to it, or does their silence evince open-mindedness on the issue? Before the term ends, perhaps we’ll see a signaling opinion that prompts a counter-signal.