The Roberts Court and DIGs

In Procedure, Supreme Court by Bryan GividenLeave a Comment

This past week, the University of Chicago’s William Baude joined Advisory Opinions podcast to talk about some of the lesser-known aspects of the Supreme Court’s practice.  During the conversation, he went past the lesser-known subjects and straight to the obscure: DIGs.

DIG stands for “dismissed as improvidently granted,” which is a formal way for the Supreme Court to say that it wishes it had never granted certiorari in a case.  So instead of addressing the merits, the Court simply dismisses the case from its docket, reinstating the lower court’s order and opinion.  It is effectively a SCOTUS Ctrl + Z.

This mechanism remains obscure because it is invoked only infrequently.  An article by Prof. Michael Solimine and Rafael Gely found that the Court DIGged 155 cases from 1954 to 2004, which work outs to about 3.04 cases per term.

Since Solimine and Gely’s dataset ends right at the start of the Roberts Court, I figured I’d compile a similar dataset for the Roberts Court and see if anything has changed. The compilation is attached to the bottom of this post. Some summary numbers are immediately below.

 1954-2004 TermsRoberts Court (2005-Present)
Total DIGs15525
DIGs per Term3.041.67
DIGs per 100 Opinions Issued2.332.12
Unanimous DIG %54%78%
Bare Majority DIG %11%16%
% of DIGs with Opinion55%32%

Note: For the per Term and Per 100 Opinions statistics, I only considered DIGs from complete terms. That removed a single DIG from the current term. I determined the number of opinions issued by consulting the incomparable Supreme Court Database and filtering out cases that were dismissed or resolved from the Court’s docket without an opinion addressing the lower court’s ruling. For voting percentages, I counted San Francisco v. Sheehan as a ½ case since the Court split on whether to DIG both questions presented or only one.

Number of DIGs: While DIGs per Term has dropped dramatically, that number mostly reflects the Court’s shrinking docket.  The number of DIGs per 100 Opinions Issued has also dropped but not near as starkly—from 2.33 to 2.12, or about 9%. 

I would expect the number of DIGs to drop more as the size of the Court’s docket shrinks. The theory would be that the Court would have more time to inspect a case for vehicle issues before granting cert.

And maybe that has actually happened, just not at the start of the Roberts Court. Swedish rock aficionado and harbinger of terrifying manimals John Elwood has documented well procedural changes at the Court that give it more time to inspect cases for issues that might lead to a later DIG. As he notes, those procedural changes became most noticeable beginning in the 2014 Term. 

Using the 2014 Term as a dividing line, we do see a stark contrast in the number of DIGs. Before the 2014 Term DIGged, the Roberts Court DIGged 16 cases or about 2.38 cases per 100 Opinions Issued.  That per 100 Opinions Issued number is nearly identical to the previous 51 terms before it. Since the start of the 2014 Term, the Court has DIGged 8 cases or about 1.87 cases per 100 Opinions.  That is about a 21.4% drop in DIGs since the start of the 2014 Term.

And that drop is probably understated.  Of the 8 cases DIGged since the 2014 Term, at least 4 were DIGged due to intervening circumstances that arose after cert was granted or due to a party attempting to change their theory of the case—developments that are out of the Court’s control. Only 3 of the 16 pre-2014 Term cases can be described that way.

So the Court’s procedural changes that give it more time to inspect for vehicle issues seem to be reducing the frequency of DIGs.

Composition of DIGs: Another stark difference is how frequently the Court is unanimous in DIGging a case.  The Roberts Court is unanimous in DIGging a case 78% of the time, which is 24 percentage points better than the 50 year period preceding it. The number of times it DIGs by a bare majority (e.g., whenever a single vote swing the other way would change the result) is about flat (11% to 16%).  Additionally, the Court is writing opinions in DIGged cases less often.  All this suggests that the members of the Roberts Court are less aggressive in using DIGs as a strategic tool and instead view it as an institutional tool.

What do I mean by strategic tool and institutional tool?

By strategic, I mean the Justices vote to DIG to achieve the end result they prefer in a particular case or on a particular legal issue.  An example of a strategic DIG might be Boyer v. Louisiana, where the 5-4 vote alignment roughly reflects what a predicted merits vote would look like.   

By institutional, I mean the Justices vote to DIG (1) to accrete benefits to the Court collectively or (2) in a way that puts collective goals over Justices’ individual preferences. An example of institutional DIGs would be a line of cases where the Court DIGged cases after the petitioners changed their theory of the case. By DIGging those cases, the Court signals to the sophisticated Supreme Court bar that it will not tolerate bait-and-switch tactics to advance a client’s interest. The members of the bar—whose currency with the Court depend on being honest brokers—then effectively police themselves, allowing the Court to continue to depend on the Supreme Court bar for expert assistance in resolving cases. 

Another example—based entirely on my conjecture—of an institutional DIG is First American Financial Corp. v. Edwards. Edwards is one of the most perplexing DIGs in history. The case was a predecessor to Spokeo, Inc. v. Robins, raising a nearly identical Article III standing issue.  Since the case was one about standing, potential vehicle problems—latent issues that prevent the Court from reaching the question presented—would be possible but drastically reduced. What makes the DIG so mystifying  is that the Court DIGged the case with no opinion on the last day of the term, 213 days after oral argument. That delay is well beyond the median (55 days) and average (58.6 days) time between oral argument and a DIG. (The excessive delay isn’t explained solely by Edwards’ early argument date; 40% of Roberts Court DIGs after argument are of cases argued between October and November.) And it is absurd compared to other DIGs that often occur within a couple weeks after argument.

This is where we hit pure conjecture: If I were a betting man, I’d wager that draft opinions for Edwards circulated through chambers but no majority could coalesce around a standard. And you can understand why it would be hard to find a standard to coalesce around given that Spokeo has created a cottage industry of explaining what Spokeo means. Instead of issuing a fractured plurality opinion on the most basic jurisdictional requirement (which would force lower courts to figure out which opinion controlled their analysis) I’m guessing the Court just decided to punt on the issue. If my conjecture is right, then the Justices in Edwards decided that DIGging the case would help fulfill its role to speak collectively and coherently about the law, while issuing a merits opinion would undercut that institutional role. Though there are times the Court may need to issue plurality opinions, I think that is a generally positive development.

Regardless of all this analysis, I think we can all agree that is truly extraordinary is that I got through this entire post without a single DIG pun.

The views expressed here are mine alone and do not reflect the views of any of my employers or clients, past or present. You can follow me on Twitter @BryanGividen.

Click here for data from the post

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