Almost two years ago, I blogged about a relatively rare phenomenon: a published denial of a petition for rehearing. Back then, two recent Fourth Circuit cases had produced petitions for rehearing and then subsequent denials of those petitions. But while decisions denying rehearing are typically just one-sentence orders, with nothing more by way of explanation, those two cases had prompted judges to write separately to express their views on the issues at the core of the petitions. In one, United States v. Brown, Chief Judge Gregory expressly urged the Supreme Court to take up the constitutional question about criminal sentencing that the case presented. In the other, American Humanist Association v. Maryland-National Capital Park and Planning Commission, four judges wrote separate opinions in an Establishment Clause case involving the World War I “Peace Cross” memorial. While the Supreme Court declined Chief Judge Gregory’s urging to hear the criminal sentencing case, and denied certiorari later that year, the Justices did take up the Peace Cross case, ultimately reversing the Fourth Circuit’s panel decision and holding that the memorial was not an unconstitutional endorsement of religion and therefore could remain standing on public property in Maryland.
Last month, the Fourth Circuit issued another denial of a petition for rehearing, this time in Barnes v. Thomas, a capital punishment case arising out of North Carolina that involves juror misconduct and the deference to be shown by federal courts in habeas corpus proceedings to earlier state court adjudications. Like its predecessors in Brown and the Peace Cross case, this denial was published and accompanied by written commentary from a number of judges. Also like its predecessors, it is clear that the audience for whom the judges were writing is, at least partly, a group of nine individuals in the nation’s capital. In fact, Judge Agee’s dissent from the denial of rehearing concludes specifically with this forecast: “It will now be the Supreme Court’s task to correct this error by reaffirming that the Court meant what it said in Brecht and Remmer and that lower courts are not at liberty to deviate from that precedent.”
The question, then, is whether this case will suffer the same fate as Brown, which the Supreme Court declined to review, or follow the path of the Peace Cross case, which the Supreme Court accepted onto its docket. I won’t attempt to affirmatively answer that question, but there are plenty of tea leaves to be read if one were so inclined. Assuming certiorari is sought, this would not be the first time that this case was presented to the Justices. After the Fourth Circuit first ruled in this case in 2014, a cert. petition was filed and denied by the Supreme Court in 2015 (and, just to make things more confusing, at that time the Court was considering not just this death penalty case, but a second death penalty case from North Carolina as well that presented the same issue of whether the federal courts had given appropriate deference to the ruling of the Supreme Court of North Carolina). See Joyner v. Barnes, 135 S. Ct. 2643 (2015). Of note, Justice Thomas penned a dissent from that denial of certiorari and was joined by Justice Alito. That means that the case fell two justices short of having cert. granted in its first trip to D.C. For those keeping score at home, two new Justices have been seated on the Supreme Court since that original denial in 2015. Would those Justices be more inclined to hear this case than those whom they replaced? If one subscribes to the theory that federal judges appointed by a specific President share or have similar judicial philosophies and jurisprudential leanings, then it might be noteworthy that the three current Fourth Circuit Judges who have been appointed by President Trump (Judges Richardson, Quattlebaum, and Rushing) joined Judges Wilkinson, Agee, and Niemeyer in voting for rehearing. Moreover, the case now has significantly more legal issues for the Justices to potentially consider than it did in 2015. At that time, the main issue upon which certiorari was sought dealt with the deference issue. This time, not only would the Supreme Court potentially be asked to address that issue, but also the additional issue of what constitutes prejudicial juror misconduct in a death penalty case.
It is also interesting to consider what, if any, effect the prior denial of cert. in 2015 might have on the Justices’ willingness (or perhaps even ability) to address the deference issue that was raised at that time. Certainly the denial of cert. would implicate the mandate rule, such that absent extraordinary circumstances the lower courts could not have revisited that issue on remand (although Judge Wilkinson’s dissent from the denial of rehearing is significantly focused on that issue). But would there be any reason that the Supreme Court, having once declined review of an issue in the same case, could not take it up if it appeared before them again? What impact, if any, does the changed makeup of the Court have on whether the Court, can, should, or would potentially grant review on the same issue in the same case where it had previously denied it?
One final note about this rehearing denial–while the judges’ submissions in the Peace Cross case were expressly referred to as “filed opinions” (“Judge Wynn filed a concurring opinion, and Chief Judge Gregory, Judge Wilkinson, and Judge Niemeyer filed dissenting opinions.”), this time the published denial referred to them as “submitted statements” (“Judge Wynn submitted a statement concurring in the denial of the rehearing en banc. Judge Agee and Judge Wilkinson each submitted statements dissenting from the denial of rehearing. These statements are attached to this order.”). If you have thoughts about the change in terminology, or want to hazard a guess as to whether this case winds up in Washington, let us know in the comments below.