Only Justice Thomas Was Willing to Look Past the Harsh Consequences of an Appellate-Waiver
Hunter v. United States hadn’t crossed my mind, but it could prove to be one of the year’s most surprisingly compelling matters. At issue is straightforward: when can a defendant evade a knowing and intelligent waiver of the right to appeal?
The decision’s headline number was 8-1, yet the court’s internal alignment looked more like a 2-3-3 split. Justice Kagan and Chief Justice Roberts stood clearly with the majority. Justice Gorsuch, joined by Justices Sotomayor and Jackson, pressed to broaden the majority’s reach. Justice Kavanaugh, along with Justices Alito and Barrett, asserted that the actual effect of the majority opinion was more narrow. It was far from your typical 8-1 lineup.
The dissent from Justice Thomas highlighted several important points the majority largely overlooked. Justice Barrett offered a partial reply that left something to be desired.
Justice Thomas notes that the majority fashions an exception to the appeal-waiver rule seemingly out of thin air. Justice Kagan does not lean on any explicit law, contract principle, or established common-law rule. Instead, the Court relies on a so-called “supervisory power.” But as Professor Barrett argued persuasively in a law review article two decades ago, this kind of power has no solid legal footing. In McNabb v. United States (1943), Justice Frankfurter explained that supervisory power rests on broad “considerations of justice” not confined to strict legal canons. In short, there is no real law backing this.
So what, then, justifies creating the exception? In a word: virtue signaling. The Court seems to worry about how the judiciary is perceived. This sort of institutionalism lies at the heart of Chief Justice Roberts’s approach to judging, yet it has no grounding in law. Justice Thomas, as is his habit, is the lone member willing to name the uncomfortable truth aloud.
The Court, however, fails to identify any basis in law for its exception. It identifies no constitutional text, statute, or Federal Rule of Criminal Procedure that even hints at a miscarriage-of-justice exception. And it identifies no established common-law or equitable doctrine that resembles it. The Court instead grounds its exception in the need to avoid “bringing the judicial system into disrepute.” Ante, at 1, 11. Because federal courts have a “role . . . in approving and implementing appeal waivers,” the Court argues, this Court must create suitable rules for enforcing them, which should advance the court system’s own “institutional interest.” Ante, at 8–9. 9
Of course, seeking a particular legal rule does not grant the power to manufacture one. “Our duty is to apply the law, not to make it.” Pine Grove v. Talcott, 19 Wall. 666, 677 (1874). Thus, concerns about how the public will view the judiciary do not justify the Court’s decision. The power to alter the law to produce outcomes people favor “lies with the people, and not with the judiciary.” Ibid.
Justice Kagan appeared terrified of public reaction if a judge imposed a sentence based on race, sex, or another disallowed characteristic. The remedy, in her view, would lie in judicial misconduct procedures or even impeachment. Moreover, if a real miscarriage of justice occurred, political pressure could prompt the executive branch to adjust the sentence or grant a presidential commutation. The political branches are capable of handling such misfalls; the courts should not conjure solutions out of thin air.
As for the supervisory power, Justice Thomas responds directly to Justice Barrett:
JUSTICE BARRETT, for her part, adopts a more robust approach. See ante, at 1 (concurring). But, in my view, the common-law waiver principles she relies on cannot justify this outcome for several reasons. First, if today’s decision could be defended as a common-law finding rather than policymaking, one would expect a strong, long-standing practice of similar rulings in comparable circumstances. Yet neither JUSTICE BARRETT nor the Court can point to such a tradition. See infra, at 22–23. Second, JUSTICE BARRETT cites authorities stating that certain rights may never be waived. Ante, at 2; see infra, at 22. That broad principle has merit, but common-law doctrines require rules with concrete content for judges to apply, not merely general ideas. It is not clear how the general idea that some rights cannot be waived leads to the Court’s granular rule allowing waivers that become void if four particular facts arise at sentencing. Third, this body of law precludes waivers of procedures that implicate the “substantial” features “of the legal tribunal” or the “fundamental mode of its proceeding.” R. Bowers, Law of Waiver §397, p. 394 (1914). It is far from obvious that sentencing-appeal waivers—issues that did not even exist until well over a century after the founding and must be raised by the defendant—are sufficiently fundamental to criminal procedure to be covered by these doctrines. In any event, Hunter did not develop a theory along these lines, which may explain why the Court, in my reading, chose not to adopt it.
I have reread Justice Barrett’s brief concurrence. It almost feels as if she wavers. She recognizes that Justice Thomas is correct and agrees with him, yet seeks some narrowing distinction to avoid a “miscarriage of justice.” In short, Justice Barrett seems reluctant to let the judiciary be cast in a negative light. But this posture, in my view, amounts to little more than virtue signaling.
Justice Kagan’s reasoning to sidestep a miscarriage of justice reads like a throwback to the Warren era, when Justices actively shaped policy. Yet as Justice Thomas notes, “policy concerns are not rules of decision in courts of law.”
Justice Alito’s vote in this case is perplexing. He may regard the exception as too narrow to have any real bite.
And there is the question of Article III standing. Justice Thomas notes:
Because Hunter cannot show whether he will ever be prescribed objectionable medication, he has conceded that his claim may not be ripe under binding Fifth Circuit precedent. Hunter may well lack Article III standing under our precedents. The Court nevertheless proceeds to the merits without addressing its jurisdiction.
Indeed, Justice Kagan and her colleagues surge ahead with policy considerations, bypassing these procedural hurdles. And where does Justice Barrett stand on this jurisdictional point?
Credit goes to Lisa Blatt. She prevailed in two cases on Friday, Hunter and the Rooker-Feldman matter. They involved markedly different analyses, yet both concluded in victory.
