Golden Gate University Law Review


This Article provides an examination of such complex dynamic interaction in the aftermath of the key 1973 border-search case of Almeida-Sanchez v. United States. In that aftermath, the U.S. Court of Appeals for the Ninth Circuit, where that case originated, had to cope with a mix of fast-developing Fourth Amendment law and the uncertain law of retroactivity as well as the effects in the many recently decided or pending appeals stemming from searches of varying intrusiveness at or near the border, at fixed checkpoints, whether permanent or temporary at a given location, or by roving patrols. The resulting question of retroactivity made the dynamics more complex: Was Almeida-Sanchez to be applied to pending cases and, if so, to those where searches pre-dated Almeida-Sanchez, to convictions on appeal when it was decided, or to recently-decided rulings not yet final because rehearing was possible? All this was made more difficult as several more Supreme Court rulings came down while the court of appeals was trying to sort out matters.

This Article proceeds in chronological fashion but only roughly so; a chronological baseline is provided to aid the reader, and analysis of aspects of Supreme Court-court of appeals interaction is presented. The Article is based not only on court opinions but also on case files in the papers of Senior U.S. Court of Appeals Judge Alfred T. Goodwin, which contain communications among the judges as they decided cases; these materials provide necessary gritty texture to the usual portrayals of courts. Judge Goodwin’s papers are especially significant here because he served as the court’s en banc coordinator, responsible for monitoring and facilitating the judges’ communication. While the full court participated in the process of selecting cases for en banc treatment in the Almeida-Sanchez “backwash,” the en banc coordinator, working in concert with the chief judge and his colleagues, played a particularly important role. He did so not only by serving as the communication node for the court’s judges but also by helping direct cases for en banc consideration and even by selecting some of them.

In the description and analysis that follow, one will see—and should be on the lookout for—a number of elements in the relationship between the U.S. courts of appeals and the Supreme Court. It is certainly clear that the Supreme Court has a great effect on later cases in the lower appellate courts. Thus, upon the Supreme Court’s handing down a relevant decision, a court of appeals will reconsider its own rulings on the basis of that decision or will remand to the district courts so that they may do so. While that might be considered obvious, there is also, as will be seen in what follows, considerable evidence that judges of the U.S. courts of appeals wait for the Supreme Court to act. Indeed, cases decided after a major Supreme Court ruling may well have been held until that ruling was issued. So, instead of plunging ahead, a court of appeals may well hold back to await further developments once cases on point have been tendered to the Justices for possible review, in what we might call anticipatory deference. Likewise, we see that, within the court of appeals, some panels may also defer action until “lead” cases on a subject are decided, with cases selected for en banc hearing—even before panel ruling—to assist all panels in their work. And we will see as well another way in which the court of appeals defers to the Supreme Court, when it facilitates the moving of cases to the high court, perhaps by prompt en banc hearing of cases, which it may do even before panels have completed their work.