C.E. Petit Responds to Buck
C.E. Petit (of the very fine Scrivener's Error) responds to Stuart Buck's post commenting on my Getting to Formalism:
I have a problem with Mr. Buck's analysis. It seems to conflate "denial of
certiorari" with "affirmance of circuit court." The intermediate case
reflects the reality of what is happening, or at least that I see happening
from my cynical vantage point. I suspect that the particular facts of
particular cases have a lot more influence on grant/denial of certiorari
than is otherwise acknowledged. Some of those facts are procedural (e.g.,
what lower court issued the opinion), some are substantive (e.g., just how
low is the convicted defendant's IQ?).
One difficulty with the whole question of stare decisis is just how much
"faith and credit" different courts give each other in different postures.
Federalism, in all its various forms, indicates that there can't be a single
formula for determining this, because the states have no obligation to
follow the same rule as would the US Supreme Court in fashioning their own
stare decisis rules. We don't even have to wade into the quagmire of renvoi
to see this. For example, I can't recall the last time that the Illinois
Supreme Court was reversed on a civil issue; all of the reversals that I can
think of offhand are on criminal matters. The Illinois Supreme Court seems
much less radical in following Justice Brennan's suggestion that states can
guarantee more rights in the civil arena, and thereby invoke the
"independent state grounds" argument, than is (for example) Alabama,
Connecticut, or California.
Then we can compare the treatment of the different circuit courts to each
other, and I don't just mean "let's trash the Ninth"--the Supreme Court
takes very few cases from the Federal Circuit, but its reversal percentage
is a lot higher than the Ninth's! (It's not a statistically valid sample,
though.) And the less said about what the Supreme Court does with Article I
court decisions (e.g., the Court of Appeals for the Armed Forces), the
better, because every possible analysis is anecdotal.
posted by Lawrence Solum 12:26 PM