iFour years ago, the Supreme Court declined a federal habeas petitioner’s request to review the Sixth Circuit’s decision in Avery v. United States, 770 F. App’x 741. Justice Kavanaugh, the Sixth Circuit’s assigned circuit justice, attached a “statement” to the Supreme Court’s cert. denial to highlight a circuit split that Avery implicated and to note his interest in revisiting the issue “[i]n a future case.” 140 S. Ct. 1080, 1081 (2020). The same issue returned to the Supreme Court this February, this time on an original habeas petition filed directly with the Court. But the Court turned it away. See Sup. Ct. R. 20.4(a). Justice Sotomayor wrote her own “statement” to “join [Justice Kavanaugh]” in “his desire . . . to resolve th[e] split.” In re Bowe, No. 22-7871 (U.S. Feb. 20, 2024). Justice Sotomayor identified a three-fold practical impediment to Supreme Court review of the issue (which gets into the weeds of AEDPA, see 28 U.S.C. § 2244(b)(3)(E)), but concluded by offering solutions.
One suggestion—that “a court of appeals seeking clarity could certify the question to this Court”—is the subject of the rest of this discussion. Justice Sotomayor referenced 28 U.S.C. § 1254(2), the lesser-known companion to the provision that gives the Supreme Court certiorari jurisdiction (§1254(1)). Certification to a State Supreme Court, this Blog has noted, is a procedure the Sixth Circuit knows well. See In re Nat’l Prescription Opiate Litig., 82 F.4th 455 (6th Cir. 2023). The U.S. Supreme Court, too, can review a direct appeal on
certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.
§1254(2). In so many words, the circuit courts can certify to the Supreme Court “a question or proposition of law on which it seeks instruction,” thus inviting the Court to resolve the discrete issue or simply grant certiorari before judgment. Sup. Ct. R. 19.1. The Supreme Court can always decline the entreaty: Upon certification, the Court conducts “a preliminary examination to determine whether the case should be briefed, set for argument, or dismissed.” R. 19.3.
Yet the intermediate courts almost never exercise this option—so little so that “it is a newsworthy event these days when a lower court even tries for certification.” United States v. Seale, 558 U.S. 985, 985 (2009) (Stevens, J., respecting the dismissal of the certified question, joined by Scalia, J.). By one account, the “[Supreme] Court has only accepted four certified questions since 1946, and has accepted none since 1981.” United States v. St. Hubert, 918 F.3d 1174, 1199 n.4 (11th Cir. 2019) (Wilson, J., dissenting from the denial of rehearing en banc). We believe the Sixth Circuit has certified just six questions to the Supreme Court, and none since the 1930s. James W. Moore & Allan D. Vestal, Present and Potential Role of Certification in Federal Appellate Procedure, 35 Va. L. Rev. 1, 26, 47‑48 (1949); see, e.g., Compton v. Jesup, 68 F. 263, 293 (6th Cir. 1895), certified question answered, 167 U.S. 1 (1897); United States v. Woo Jan, 250 F. 595, 596 (6th Cir. 1917), certified questions answered, 245 U.S. 552 (1918).
Though certified questions were once a path to Supreme Court review well-traveled, see Moore & Vestal, their fall to obscurity is understandable. Certification is useful to the court of appeals only for “difficult or doubtful” questions. Williams v. Order of Commercial Travelers, 41 F.2d 745, 745 (6th Cir. 1930). But on hard questions, circuit courts do the Supreme Court a great service by opining first. The cases where the court of appeals would benefit from “instruction,” in other words, are the very cases where the Supreme Court benefits from “percolation” in the lower courts. See, e.g., NFIB v. OSHA, 595 U.S. 109, 117, 118 (2022) (per curiam) (twice quoting In re MCP No. 165, 20 F. 4th 264, 272, 274 (6th Cir. 2021) (Sutton, C.J., dissenting from denial of initial hearing en banc)). It makes sense for the court of appeals to take the first pass even on a certification-worthy question, anticipating a certiorari-worthy petition to follow.
Perhaps another practice arrived in place of circuit certification. Judges keen to flag an issue worthy of Supreme Court review may write a separate opinion from the denial en banc review. In that forum, circuit judges can register a gentle nudge that guidance is welcome without taking the bold and out-of-style step of certification. Westmoreland v. Butler Cnty., Kentucky, 35 F.4th 1051, 1053 (6th Cir. 2022) (Bush, J., dissenting from the denial of rehearing en banc) (highlighting “the need for the Supreme Court to provide guidance”).
Yet, as Justice Sotomayor indicated, circuit certification remains available. Where, for example, AEDPA forecloses certiorari review, certification stands ready. See Felker v. Turpin, 518 U.S. 651, 667 (1996) (Souter, J., concurring). Are there other occasions to certify?
An obvious possibility is times of exigency. Against tight deadlines, the Sixth Circuit handled the vaccine mandate case at warp speed—less than one month from docketing to panel decision—and still managed to produce five merits opinions. An alternative option was to certify the discrete likelihood-of-success question to the Supreme Court to save time. With the benefit of hindsight, however, the Circuit provided the Supreme Court a more valuable service by supplying several thoughtful opinions at the expense of extra time. Compare In re MCP No. 165, 21 F.4th 357 (6th Cir. 2021) (Stranch, J., for the court), and id. at 388 (Gibbons, J., concurring), with id. at 389 (Larsen, J., dissenting), and In re MCP No. 165, 20 F.4th at 267 (Sutton, C.J., dissenting from denial of initial hearing en banc), and id. at 285 (Bush, J., dissenting).
In other instances, certification could do the Supreme Court a favor. Take the case of Loper Bright v. Raimondo, No. 22-451. The Court granted cert. to reappraise Chevron deference. The trouble was Justice Jackson’s prior service on the D.C. Circuit necessitated her recusal. 143 S.Ct. 2429 (2023). To cure that problem, the Court later granted review over the identical question in Relentless v. Department of Commerce, No. 22-1219, and scheduled the cases for argument on the same day—one with Justice Jackson, one without. Had Relentless still been pending at the court of appeals when an eight-member Court took up Loper Bright (it wasn’t), the First Circuit would have a had a good case to certify. (The same could be said of the Fourth Circuit in Students for Fair Admission v. University of North Carolina, No. 21-707, as evidenced by the Court’s grant of certiorari before judgment.) When the Supreme Court has agreed to review an important question under suboptimal circumstances, certification could offer the Court a better vehicle to consider the same issue—think the student loan case, Biden v. Nebraska, without a standing quandary or this term’s Acheson Hotels v. Laufer case free from mootness.
An odd situation confronted the Sixth Circuit in In re Embry. 831 F.3d 377. That case arose in the crosshairs of a complex and changing area of criminal law. The Supreme Court had granted review of a case, Beckles v. United States, that promised to bring clarity—but not until the next term. The Sixth Circuit sent Embry down “to the district court, to be held in abeyance pending the Supreme Court’s decision in Beckles.” Id. at 378. Beckles had its own oddities: for one, it arose during the interregnum between Justices Scalia and Gorsuch. Second, Justice Kagan recused. 136 S.Ct. 2510 (2016). With the Supreme Court sitting as panel of seven in Beckles, the Sixth Circuit might have piqued the Court’s interest by sending Embry up instead of down.
While certification to the Supreme Court is unlikely to return to common practice, it’s a procedure worth knowing and in appropriate cases asking for. To Justice Sotomayor’s point, sometimes certification will be just the right lever to pull.
This article was authored by Trane Robinson.
