Why the Circuits and U.S. Supreme Court Need to Delegate More Effectively

In a recent Ninth Circuit decision, judge Diarmuid F. O’Scannlain wrote a 10-page concurring opinion on a moot finding. In this opinion, O’Scannlain lectured the judge from the lower court (Hon. Judge Phillips: Central District of California [Riverside]) and the rest of the judiciary against creating new rights for homosexuals out of the Supreme Court’s 2003 decision in Lawrence v. Texas. The per curiam ¹meaning the opinion was unanimous opinion, including O’Scannlain’s opinion is available here.

There is a problem here. The opinion of the Circuit found the case moot, but that didn’t seem to be enough for one of its judges. The issue there was a now-famous lower court decision by Judge Phillips which called the Congressionally enacted “Don’t Ask, Don’t Tell” policy unconstitutional. Because this policy has now been repealed by Congress, the case is moot.

This, however, didn’t stop O’Scannlain from blasting the lower court’s decision. From SCOTUS Blog:

“Accusing a federal trial judge of misusing her authority when she struck down the military’s ban on gays and lesbians in the service, a federal appeals court judge on Thursday lectured the rest of the judiciary against creating new rights for homosexuals out of the Supreme Court’s famous ruling eight years ago in Lawrence v. Texas. Circuit Judge Diarmuid F. O’Scannlain did so as the Ninth Circuit Court threw out that lower court judge’s ruling interpreting Lawrence broadly. The three-judge panel found that decision by District Judge Virginia A. Philllips to be moot, because the so-called “don’t ask/don’t tell” policy at issue has now been repealed by Congress.”

2020 Update Note:

The protection of sexual orientation, as a protected class under the Equal Rights Act, was recognized earlier this year in Bostock v. Clayton County, Georgia. This decision creates the class of protected citizens in the LGBT community that Judge Phillips was accused of creating with her decision. See Bostock v. Clayton County, Georgia, 590 U.S. ___ (2020).

The Core Problem

The problem here is not the constitutional application of a now-dead policy. It has much less to do with the rights of homosexuals as it does the rights of the rest of the American population. There is a culture within the judiciary that seems to neuter federal judges in District courts from making many landmark decisions.

Most huge decisions are, understandably, made by the Supreme Court. This occurs when issues arise of Circuit splits, constitutional interpretation questions, and other case-specific reasons the United States Supreme Court (SCOTUS) uses for granting Cert. The deferment to Supreme Court authority is a necessary part of the check-and-balance process of American law.

That said, federal judges at the District level appear afraid to rule anew on any major issue for the exact reason here. If a judge sticks his or her neck out on an issue they believe is blatantly unconstitutional, they risk being publicly admonished by their Circuit brethren for over-stepping their bounds.

This Sounds Familiar

The military had this problem in Vietnam. Specific targets had to be affirmed by high-ranking generals and sometimes even the President before being hit. Sometimes this decision was made, for or against, whilst a bombing pilot was en-route to the target.

The idea of delegating this authority to lower-ranking commanders came about because of the absolute inefficiency of these missions, and the “war” as a whole.

Large issues remain undecided out there today because SCOTUS won’t hear or re-hear cases. District courts often seem afraid to blaze new ground. Making big decisions needs to be less scary for lower courts.

Case in Point

To illustrate this problem, one need to look no further than SORNA laws. The Sex Offender Registration and Notification Act ²Sex Offender Registration and Notification Act (part of the Adam Walsh Act of 2006) ³The Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act” or “Act”) mandated States to comply with federal minimum guidelines for implementing Sex Offender Registries. Sounds like a good idea.

Problems arise, however, when the language of the Act makes the laws they spur unconstitutional. SCOTUS ruled in Smith v. Doe, 538 U.S. 84, that SORNA laws were civil regulatory schemes and not punitive in nature. Thus, SORNA laws are not unconstitutional violations of the ex post facto clause in the U.S. Constitution. ⁴Held: Because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause.

Justice Souter, in a concurring opinion, commented that his tip toward constitutionality (ie. the laws were regulatory and not punitive in nature) of the statute from Alaska was premised on the presumption of constitutionality afforded to the State.

However, Alaska answered by finding that same law unconstitutional in its own Supreme Court. ⁵Alaska Supreme Court Declares Sex Offender Registration Law Unconstitutional This would, inherently, shift SCOTUS’s opinion (at least the opinion of Justice Souter) the other direction.

Unfortunately, Smith v. Doe has opened the door for 8 years of State laws that continue to get harsher and more punitive in nature because of the carte blanche perceived from this decision. Whats worse, SCOTUS has yet to grant Cert for any new case that questions the constitutionality of newer, harsher laws made for SORNA-compliance.

Empower Federal Judges in the Districts

If federal judges at the district level felt less constrained to make rulings on constitutional issues, matters like the example above would have resolutions more swiftly. The unintended effect of empowering District judges would be an increase of conflicting opinions that need to be heard by the Circuits. However, that seems to be the purpose of the Circuits in the first place.

Whats best for the American people may not be what is easiest to process by the courts. Empowering District judges to make tough decisions without fear of Circuit reprisal might create a large case load for the Circuits, but would greatly change the dynamic and speed at which facially unconstitutional laws are able to be tossed out.

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