Do Circuit Courts Have “Supervisory Power” Over District Courts?
The Supreme Court issued two opinions today (which is odd for a Friday). In one the Court unanimously held that the Foreign Intelligence Services Act does not displace the state secrets privilege. In the other it reinstated the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev, by a vote of 6-3.
The Court’s lineup in the Tsarnaev case was not unusual — the conservatives were in the majority and the liberals were in dissent. What was interesting, however, was the concurrence by Justice Barrett, joined by Justice Gorsuch, suggesting a broader potential problem with the circuit court’s decision to invalidate Tsarnaev’s capital sentence: Circuit courts lack supervisory power over district courts to dictate the latter’s procedures.
From Justice Barrett’s concurrence:
In this case, the First Circuit asserted “supervisory power” to impose a procedural rule on the District Court. Because that rule (which required a district court to ask media-content questions on request in high-profile prosecutions) conflicts with our cases (which hold that a district court has broad discretion to manage jury selection), I agree with the Court that the First Circuit erred.
I write separately to note my skepticism that the
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