Do Circuit Courts Have “Supervisory Power” Over District Courts?

Today’s Supreme Court opinion was oddly issued on Friday. The Court unanimously ruled that the Foreign Intelligence Services Act doesn’t invalidate the state secrets privilege. It also reinstated Dzhokhar Trarnaev’s death sentence for the Boston Marathon bombing, with a vote by 6-3.

The Court’s line-up in the TsarnaevThe case was common — conservatives were the majority, while liberals were in discord. It was however interesting to see Justice Barrett and Justice Gorsuch concur in invalidating Tsarnaev’s capital sentence. The circuit courts have no supervisory authority over the district courts, which means they cannot dictate their procedures.

Justice Barrett has given his concurrence

In this case the First Circuit claimed “supervisory power” over the District Court to place a procedural ruling. The First Circuit’s rule that required the District Court to request media-content questions in cases involving high-profile prosecutions conflicts with my cases, which hold that district courts have broad discretion over managing jury selection.

Let me express my disbelief that courts of appeals have this supervisory power. Article III: “[t]The “judicial Power” confers every federal court the ability to direct its own proceedings. . . . Federal courts can handle large and small matters that are not covered by governing statutes or formally adopted procedural procedures. . . .But here, the First Circuit did not adopt a rule regulating its own proceedings—it adopted a blanket rule that all district courts in its jurisdiction must follow on pain of reversal.

We have suggested, in fairness to First Circuit, that the courts on appeals are able to establish procedural rules to be followed by district courts. . . . The First Circuit then followed suit. We should first reexamine our map before continuing down this path. It is not just impossible to locate a source for the supposed authority; it is also uncertain if there even exists one.

This Court is certain that it has asserted its full supervisory authority to control the procedures in federal lower courts. . . . We haven’t justified it, but at least we can argue that there is a basis for the power: The Constitution designates this Court the “supreme” Court and not the “inferior Courts”, which Congress may create. Art. III, §1. Like the grant “[t]Since “he judicial power” has inherent authority over local procedures, the Court’s title as “supreme”, might confer some authority to make procedural rules in federal lower courts. . . .  The Constitution’s history and structure might not support this argument. The text of Article III still makes it possible.

But regardless of what the Court’s Supervisory Authority is, it can be difficult, or even impossible, to find a comparable constitutional hook in courts of appeals for this power. They are not granted this authority by any statute. Although it may be tempting to merge supervisory authority with the ability of appellate reviews, these two powers are analytically distinct. In this instance, a court engages in appellate review to determine whether the lower court has exceeded its inherent power to make a procedural decision. If a court has supervisory authority, it can impose its own procedure on the lower judge. This means that supervisory power does not automatically entitle the lower court to a less extensive appellate review.

The case doesn’t require us to determine whether appeals courts have supervision authority over the district courts. The First Circuit made a mistake. However, our dicta may be worth revisiting at some future date.

Federal Courts Professors: Take note!

Another little fact: Justices Kagan, Sotomayor and Justice Breyer joined Justice Breyer in disapproval with the exception of this paragraph.

I’ve written previously about the difficulties inherent in a system which allows the death penalty to be imposed. See, e.g., id., at 909–938. The following case is just another illustration of the problems.

More opinions will be offered Monday.