The federal appeals court in Atlanta will decide whether district court judges have inherent power to order the disclosure of grand jury materials without new guidance from the U.S. Supreme Court, which last week turned away a chance to rule in a similar case.

The justices on Jan. 21 let stand a ruling by the U.S. Court of Appeals for the D.C. Circuit that said judges don't carry that authority. The justices' inaction means lower court precedents will remain conflicted on the issue.

The full Eleventh Circuit is weighing a case of a historian's efforts to examine records from the grand jury that investigated the 1946 lynching of two African American couples at the Moore's Ford Bridge in Walton County, Georgia. The killings are considered one of the precursors to the civil rights movement.

Judge Marc Treadwell of the U.S. District Court for the Middle District of Georgia in 2017 ordered the release of the Moore's Ford grand jury transcript, but the U.S. Justice Department appealed.

Last year, an Eleventh Circuit panel split 2-1 to uphold Treadwell's ruling, based in part on a 1984 precedent known as Hastings, 735 F.2d 1261. The panel allowed the release of grand jury records in an "exceptional situation"—the indictment of then-District Judge Alcee Hastings of Miami. Courts have also released grand jury transcripts in historically significant cases, including those involving Julius and Ethel Rosenberg, President Richard Nixon and union leader Jimmy Hoffa.

One of the two judges in last year's majority, Adalberto Jordan, noted he was bound by precedent but was concerned its holding over a judge's power to release grand jury records was "too open-ended." The full Eleventh Circuit voted to reconsider the case and last October heard arguments over whether the court should scrap the Hastings precedent.

As the Eleventh Circuit pondered its decision, the Supreme Court shied away from the question last week, with only Justice Stephen Breyer offering his thoughts on the matter. He wrote that the D.C. Circuit's ruling "is in conflict with the decisions of several other Circuits, which have indicated that district courts retain inherent authority to release grand jury material in other appropriate cases."

"Whether district courts retain authority to release grand jury material outside those situations specifically enumerated" in the federal judicial rules "is an important question," Breyer added. He urged the federal judicial rules committee to revisit the question.

Ashwin Phatak of the Constitutional Accountability Center, which in an amicus brief backed the historians seeking unsealed grand jury materials in the Eleventh Circuit and the high court cases, said it was disappointing that the justices declined to hear the case. "[T]he text and history of the Federal Rules make clear that district courts have the inherent authority to disclose historically significant grand jury materials," he said.

A denial of certiorari "is not a ruling on the merits," he added, arguing the Eleventh Circuit need not wait to see whether the judicial rules advisory committee takes up Justice Breyer's suggestion that it clarify its position.

"The Advisory Committee has consistently stated for decades that district courts have this authority, as have numerous courts," he said.

David Karp of Carlton Fields in Miami, who represents a historian and a foundation pushing for the records to be unsealed in the Georgia case, said Breyer's comment "reinforces our argument that the Rules Committee already recognizes the inherent power of federal courts to release grand jury material in cases of exceptional historical importance."

"We were also heartened to see Justice Breyer recognize that this issue presents an important question," added Karp. "The process of confronting our nation's past is vital to democracy and to progress. Federal courts can and should further these values, rooted in the First Amendment, by exercising sound discretion to release grand jury records in appropriate cases of exceptional historical importance."

A lawyer for the Department of Justice did not respond to a request for comment.

Joseph Bell, a New Jersey lawyer who represents the historian in the Eleventh Circuit case, echoed those who said the judicial rules committee already allows judges to unseal grand jury information in extraordinary cases.

During the Eleventh Circuit argument, one judge told Bell that, if he lost the case, the records could still come via the Civil Rights Cold Case Records Collection Act of 2018, which allows a review board to authorize the release of records from cases like the Moore's Ford lynching.

Bell noted this week that the new law gives veto authority to the U.S. attorney general, so "I may never get the transcripts."

Mike Scarcella of ALM's Supreme Court Brief contributed to this report.