Supreme Court Take Two: What’s Behind SCOTUS Rearguments

By Kimberly Strawbridge Robinson

The U.S. Supreme Court court did something this week that it rarely ever does: rehear cases from the prior term.

During the first week of oral argument for the 2017 term, the justices reheard Sessions v. Dimaya and Jennings v. Rodriguez, two so-called crimmigration cases at the intersection of criminal and immigration law.

In Dimaya, the court is considering whether a law requiring immigrants to be removed for criminal convictions is so vague that it violates due process. In Jennings, the court is expected to decide if immigrants awaiting removal proceedings must be given bond hearings while awaiting trial.

Presumably, the Supreme Court was deadlocked 4-4 when they heard the cases the first time around with only eight justices on the bench.

The justices were deadlocked in a handful of cases the previous term as well, after Justice Antonin Scalia’s death in February 2016. There, the justices affirmed the cases “by an evenly divided court.” That left the lower courts’ decisions in place without setting national precedent.

In Dimaya and Jennings, the justices didn’t seem to want to send the cases back to the lower courts without a definitive resolution, Stephen Wermiel, a professor at American University Washington College of Law, Washington, told Bloomberg BNA in a Sept. 27 email.

By setting cases for reargument, the court’s newest member, Justice Neil M. Gorsuch, can now break the tie and and the high court can set clear rules that are binding on all federal courts, said Wermiel, who also writes a column on Supreme Court practice.

But waiting for a potential tie breaker isn’t the only reason the Supreme Court orders a case to be reargued.

Sometimes the justices want to add an issue that the first round of argument didn’t address, Wermiel said. Other times, reargument is just “a way of buying more time” to decide a thorny issue, he said.

Tie Breaker

“The Court orders reargument mainly in two circumstances,” E. Joshua Rosenkranz, of Orrick, Herrington & Sutcliffe LLP, New York, who arguedDimaya for a second time Oct. 2 , told Bloomberg BNA in a Sept. 28 email.

The first is, of course, where a 4-4 tie “can be broken by a new member of the Court,” Rosenkranz said.

That happened in a handful of cases after Justice Sandra Day O’Connor retired from the court in January 2006.

The shorthanded court was likely deadlocked in three cases following O’Connor’s retirement: Garcetti v. Ceballos, Kansas v. Marsh, and Hudson v. Michigan. All three were “restored to the calendar for reargument” and heard once Justice Samuel A. Alito Jr. replaced O’Connor on the bench.

All three cases were eventually decided by a vote of 5-4, with Alito in the majority.

Long Tradition

In those tie-breaking situations, the court will typically not order the parties to file new briefs, Wermiel said.

The justices “are basically going to decide the case on the basis of what was argued in the briefs already,” they just need another justice to break the tie, he said.

In fact, the actual reargument probably isn’t really necessary, he said.

Part of the reason the justices do so, though, is because of a “long tradition at the Court of leaving no argued cases unresolved at the end of the Term,” Wermiel said.

Some deadlocked cases, therefore, will be affirmed by an evenly divided court at the end of the term.

That’s what happened during the court’s 2015 term in a case challenging President Barack Obama’s deferred action immigration program for parents of U.S. citizens and lawful permanent residents, effectively ending the program.

At the time, Judge Merrick Garland’s nomination to the high court was stalled when the Republican Senate refused to act on Obama’s replacement for Scalia. It wasn’t clear when the Supreme Court would be back to full strength.

But if the justices believe that the issue needs a resolution relatively quickly without more input from lower courts, they may order the case reargued the next term rather than just leave the issue unresolved, Wermiel said.

One More Question

The other principal use of rearguments is to add a new question to the case.

The justices may feel “there is something missing that needs to be addressed” or they may just decide—on their own—"that the case presents a good vehicle to reach an issue some Justices want to reach,” Wermiel said.

In those cases, the court may “order new briefs with an expanded or entirely new question,” Wermiel said. “The new question might have arisen in the course of the first oral argument,” or “it might have become apparent as someone was trying to draft a majority opinion and kept stumbling over an issue that wasn’t properly briefed and argued.”

Both Wermiel and Rosenkranz pointed to Citizens United v. Fed. Election Comm’n as an example.

After hearing arguments on the narrow question of whether a campaign finance law applied to one group’s documentary during the 2008 term, the court restored the case to the calendar, set a new argument day, and ordered the parties to brief a much broader issue dealing with the constitutionality of campaign spending limits for corporations and unions.

“The decision to add the question in Citizens United was hugely controversial within the Court (as indicated by the opinions that ultimately came out),” because the original challenge had purposely declined to challenge the law so broadly, Rosenkranz said.

Controversy in such cases comes from “the perception that the Court is essentially hijacking a case for its own agenda, transforming a case into something it was not and had never been about,” Wermiel said.

The Supreme Court itself has said that its jurisdiction is limited to the “cases or controversies” that the parties bring before it.

But ordering reargument to wait for a tie-breaking justice doesn’t stir up such controversy, he said.

More Time

Controversial topics themselves sometime spawn reargument.

“There have been times when the court has ordered reargument, because it just needed more time to write the opinion or find common ground,” Rosenkranz said. “ Roe v. Wade was a famous example.”

But such rearguments are rare, he said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.