Thermtron: The Unsexy Case the Current Court Should Overturn (Statutory Stare Decisis Be Damned)

Authors

Christine Tamer

Document Type

Article

Abstract

Since 1887, Congress has created an impenetrable dike wall to stop appellate review of remand orders in 28 U.S.C. § 1447(d), which provides: “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . . .” Then, in 1976, the Supreme Court held “that § 1447(d) does not mean what it says” and, thereby, punctured not a tiny hole, but a big one in Congress’s dike wall that had been impenetrable for nearly 90 years. While you won’t find Thermtron—an unsexy jurisdictional case—on any list of the worst Supreme Court decisions, Thermtron was and is (in a word) disastrous, and the time is ripe to overturn it (statutory stare decisis be damned). Not only is it almost universally agreed that Thermtron was “egregiously wrong as a matter of law” when decided, the fallout from Thermtron has been and still is uncontainable. The Supreme Court has stepped in nine times to interpret § 1447(d), and, despite nine opinions on the applicability and meaning of § 1447(d) post-Thermtron, there are still serious circuit splits and confusion. This Article outlines the many current splits and state of confusion in the inter mediate courts. It also conducts a deep dive into the most recent circuit court of appeals cases—those from January 1, 2022, to February 1, 2025—with the goal of understanding how intermediate appellate courts are presently dealing with the Thermtron fallout, and also specifically why and how § 1447(d) issues are still arising. It concludes that the vast majority of the cases where the courts of appeal are reviewing remand orders lack even a good-faith basis for appeal, such that the Thermtron effect has been (and still is) that defendants are delaying justice with “routine” review of remand orders opposite Congress’s intent. This Article then, applying the Supreme Court’s most recent opinion involving statutory stare decisis, argues that Thermtron should be overturned because it is the poster child for a case worthy of departing from statutory stare decisis. Last, this Article conducts an analysis of the current Court and argues that, if presented squarely with the question as to whether this Court should overturn Thermtron, it is likely that the answer would be “yes” for a majority of the Court.

DOI

10.37419/LR.V13.I1.8

First Page

411

Last Page

477

Recommended Citation

Christine Tamer, Thermtron: The Unsexy Case the Current Court Should Overturn (Statutory Stare Decisis Be Damned), 13 Tex. A&M L. Rev. 411 (2025).
Available at: https://doi.org/10.37419/LR.V13.I1.8