The Third Circuit’s Supreme Court Scorecard

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With Supreme Court’s historic term now in the rear view, it is a good time to review how the Third Circuit Court of Appeals performed before the country’s highest Court. To start, there is a fairly small sample to review. Only three Third Circuit cases came before the Supreme Court during the October 2015 Term. One was affirmed, and two were reversed.

By comparison, the Court considered 12 Ninth Circuit and reversed 80 percent of them. The Second Circuit, which compromises New York, fared much better. It sent six cases to the Supreme Court, and four were affirmed.

Overall, the Third Circuit’s performance is average. According to SCOTUSblog’s final calculations, the Supreme Court issued affirmances in one-third of all cases decided last term. Of course, all of the Supreme Court statistics from the October 2015 must take into consideration that four cases resulted in 4-4 ties following the unexpected death of Justice Antonin Scalia.

Third Circuit Cases Considered by the Supreme Court

Zubik v. Burwell was the most significant case arising from the Third Circuit. While many expected it to be a blockbuster, it largely fizzled. Whether the case should fully count as a “loss” for the Supreme Court is a matter of debate, given that the justices punted on the core issues of the case. In its per curium decision on the Affordable Care Act’s contraception mandate, the Supreme Court directed the lower courts to hash out the details of the potential compromise devised by the Court during oral arguments. Accordingly, it declined to determine “whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.” As a practical matter, the federal government may provide contraceptive benefits to employees of the non-profits while the Third Circuit and other federal appeals courts consider a long-term solution.

In Merrill Lynch, Pierce, Fenner & Smith v. Manning, the Supreme Court unanimously agreed with the Third Circuit. The justices held that the jurisdictional test established by Section 27 of the federal Securities Exchange Act of 1934 is the same as the test of the general federal-question statute, Section 1331, for deciding if a case “arises under” a federal law.

In Heffernan v. City of Paterson, the Supreme Court addressed a case directly originating from New Jersey. The justices reversed the Third Circuit’s dismissal of the case, holding that when an employer demotes an employee out of a desire to prevent the worker from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983, even if the employer’s actions are based on a factual mistake about the employee’s behavior.

In its tally of Third Circuit cases before the Supreme Court, Law.com noted that the Supreme Court also considered several other cases that resolved circuit conflicts in which the Third Circuit had weighed in. Again, the results weren’t stellar.

In Dietz v. Bouldin, the Supreme Court held that federal judges have a limited inherent power to recall a jury in a civil case for further deliberations after identifying an error in the jury’s verdict. In so ruling, the majority agreed with the Third Circuit’s reasoning in United States v. Figueroa.

However, in all of the remaining cases, the Supreme Court declined to follow the approach adopted by the Third Circuit. For instance, in Campbell-Ewald Co. v. Gomez, the Court held that a plaintiff class representative’s claim is not rendered moot by an unaccepted offer of judgment, overruling the Third Circuit’s decision in Weiss v. Regal Collections, 385 F. 3d 337 (2004).

What’s On Tap?

The Supreme Court justices are now on summer break and will return to the bench in October. The Court has already granted certiorari in 29 cases, including one from the Third Circuit.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.