Getting to Shutts


Linda S Mullenix

46 University of Kansas Law Review 727


The Shutts case combines many elements dear to academicians. Importantly, Shutts involved constitutional issues of due process so complex that these issues fully consumed the Supreme Court's opinion. The Shutts decision ultimately became important not so much for what it said, but rather for what it did not say. Hence, Shutts involved a Famous Footnote Three which created the so-called Shutts problem. Fortuitously, the Shutts problem subsequently accounted for not one, but two bizarre sojourns on the Supreme Court docket.

The Supreme Court has had the opportunity to decide the Shutts issue twice, but remarkably, the Court twice has failed to do so. Thus, the Shutts problem remains, and the immediate, compelling question is not how the Court should decide the Shutts issue on its merits, but simply the problem of getting to Shutts in the first place. The Supreme Court does not grant appellate review in many cases, so it is all the more remarkable when the Court grants certiorari, only to subsequently conclude that it improvidently granted certiorari in the first place. Viewed in perspective, the Court very rarely dismisses on “improvidently granted” grounds.

It is all the more remarkable, then, that this Court has twice granted review on the Shutts issue, only to conclude that it twice improvidently granted certiorari. Needless to say, the Shutts issue is a very important class-action issue. However, the Shutts issue now merits some unique place in Supreme Court bungling, or at least Supreme Court trivia, for the repeated failure to properly get an issue before the Court. In pedantic fashion, the Court seems to be lecturing litigants to get their procedure right in perfecting an appeal to the Court.

Oddly, the Shutts problem has now been transformed into an entirely different problem of simply getting to Shutts. The lawyers in these cases are properly chastened, but on balance, the history of these litigations reflects not so much bungling as the considered strategic choices that went awry for the purposes of Supreme Court appeal. The practitioners remind us that most litigants, involved in the trenches, do not anticipate doing combat in the Supreme Court. Most lawyers, especially state court practitioners, do not start out with the perspective that their case is going to wind up in the United States Supreme Court, and thus it is logical that some constitutional issues like Shutts may be overlooked in what otherwise seems like work-a-day litigation to lawyers.

Consequently, lawyers need to look beyond or anticipate possible Supreme Court appellate issues, so as to properly assert and preserve such issues for an ultimate appeal. The experience also teaches that the strategic planning of lawyers may inadvertently result in the loss of an appellate issue, such as Shutts. Lawyers forced by state appellate rules to focus all their energies on “taking their best shot” during a fifteen minute oral argument, may thereby forfeit an appellate right, even though they believe they have preserved it in their brief.

The frustrated appeals also teach that lawyers may not be able to salvage an appellate issue by reasserting the issue in a petition for rehearing to the state supreme court. The lawyers made these decisions and, in hindsight, are uncertain what else they might have done to preserve the Shutts issue better than they did. Shutts watchers, however, may take some consolation that if and when future litigants ever successfully perfect a Supreme Court appeal, this issue has to be one of the most briefed and argued problems in Court history. And when that historic day arrives, the Justices ought to have a powerful sense of deja vu.

Full Citation

Linda S. Mullenix, Getting to Shutts [Symposium in Honor of Prof. Robert Casad], 46 University of Kansas Law Review 727 (1998).