Appeals:
Appellate Courts and the
U.S. Supreme Court
Artemus Ward
Department of Political Science
Northern Illinois University
Differences between Appellate
Courts and Trial Courts
Trial courts determine what
occurred in a conflict (the
facts).
Appellate courts accept the
trial courts’ determination
of facts and are concerned
instead with how procedural
decisions were made and
the laws that were involved
in trial decisions.
In theory, an appeal is
designed to catch legal Judges of the New York State Court of Appeals
errors that may occur in
trials.
Differences between Appellate
Courts and Trial Courts
Kentucky Court of Appeals
Appellate courts hear no new testimony and consider no new
evidence.
There are neither witnesses or juries.
Every losing litigant in entitled to one appeal.
The vast majority of all appealed cases end with one appeal, though
some go on to the U.S. Supreme Court or state Supreme Courts.
Importance of Appeals
Although appellate courts catch some errors, correcting trial mistakes is
not their main importance.
Policy Making - appealed cases create opportunities for courts to make
broader policies - to change the law.
Issues change as cases move from trial courts to appellate courts. For
example, in criminal cases the issue changes from determining factual
guilt to questions of constitutional law and due process - did police seize
evidence properly, did defendant get an attorney, jury?
Getting to Appellate Courts
Most courts permit a week or
more for the appellant to file a
notice of appeal with the trial
court that originally decided
the case.
A copy of the notice of appeal
is sent by the court to the other
side (appellee).
Appellant pays for documents
for the appellate court -
transcript of the trial, court
exhibits, and the brief.
Preparing the brief is the main
job of the appellant’s lawyer.
It states the reasons for appeal,
relevant facts, and the legal
basis for reversing or
modifying the trial court
decision (with legal citations to
support it).
Getting to Appellate Courts
In many cases, attorneys request
time to argue their case personally
before the appellate court (oral
argument). It’s up to the court to
grant this request and not all cases
are orally argued.
Most litigants are discouraged from
appealing because they must pay
more money for attorney’s fees and
other court records for transfer to
the higher court. The odds against
their winning are very high since few
disputes involve substantial legal or
policy questions, and appellate
judges are very unlikely to substitute
their own view of the facts for those
of the trial courts.
The Highest Appellate Court:
The U.S. Supreme Court
The Roberts Court
The Court is Shrouded in Secrecy
We will discuss how a case moves through the Court with
particular attention to:
– The role of law clerks
– The strategy, negotiation, and compromise among the nine justices at
each stage of the process
We will conclude by asking whether a Court composed of
unelected, unaccountable, elite lawyers is good for America.
“The Nine
Old Men
(and Women)”
Research shows that the nine justices are
generally divided along ideological lines:
– 4 Conservatives: Roberts, Scalia, Thomas, Alito
– 4 Moderate Liberals: Stevens, Ginsburg, Breyer, and Sotomayor
– 1 “Swing Vote”: moderate conservative Anthony Kennedy
Sorcerers’ Apprentices: Law Clerks
Each justice has 4 clerks, the
Chief 5, and retired justices 1
Recent Law School graduates
largely from: Harvard, Yale,
Chicago, Columbia, Stanford,
Virginia, Michigan
They almost always have one-
year clerking experience on
the U.S. Courts of Appeals
They almost always spend Stanford Law School Supreme Court Law
only one year on the Supreme Clerks for the 2004-2005 Term (left to right):
Court. Clerk Grad Justice
• Aimee Athena Feinberg '02 Breyer
After clerkship they can • Roberto J. Gonzalez '03 Stevens
choose any job they want. • Kathryn Rose Haun '00 Kennedy
• Joshua A. Klein '02 O'Connor
Deciding to Decide
Discretion - the Court
largely chooses which cases
(petitions for write of
certiorari) it wants to
consider.
Of the nearly 10,000 cases
appealed to the Supremes
every year, only 70 or so are
decided with full written
opinions after oral
argument.
How can nine justices
examine nearly 200 petitions
each week?
Granting Certiorari
Cert Pool - Cert petitions are divided up
between every law clerk at the Court
(except Justice Stevens’ and Justice
Alito’s clerks who work alone). The
clerks prepare a brief memo on each
case for all the Justices to read.
Excluding the Stevens and Alito clerks,
there are 29 clerks in the pool, though
the clerks for retired justices have
sometimes also participated in the pool.
Therefore, each pool clerk reviews and Chicago Law School Supreme Court Law
writes a memo on roughly six cases each Clerks for the 2004-2005 Term (left to right):
week. Clerk Grad Justice
Though it is not known what Justice • Jeff Wall ’03 Thomas
Alito does in his chambers, Justice • Jay Richardson ’03 Rehnquist
Stevens does not require his clerks to • Curtis Gannon ’98 Scalia
write memos on all of the petitions • Jake Phillips ’03 Scalia
because if they did, each of his 4 clerks • Dan Powell ’03 Stevens
would be writing nearly 50 memos each • Andy Baak ’03 Kennedy
week! •Martha Pacold ’02 Thomas
Granting
Certiorari
Cues - shortcuts that allow
clerks and justices to
determine cases “worthy” of
consideration:
U.S. government is a party
to the dispute.
Conflict among courts.
Conflicting ideology
between Supreme Court and
lower court(s).
Interest group participation.
When 2 or more cues exist in
the same case, chances of
obtaining cert are high.
In the above pool memo, the clerk notes a circuit split and recommends grant.
Granting
Certiorari
Some justices have their clerks
“mark up” the pool memo with
their own views and
recommendations. Justice
Blackmun was suspicious of
ideological bias and asked his
clerks to mark up the pool
memo with the information
about the pool clerk who
drafted the memo: the clerk’s
first name, the justice they
currently clerk for, the lower
court judge they last clerked
for, and the law school
attended.
A Blackmun clerk marks up the pool memo to note that it is from
“Margo” Schlanger, a Ginsburg clerk who attended Yale Law School.
Granting
Certiorari
Discuss List - The Chief
Justice with his clerks
makes up a list of cases
he thinks ought to be
discussed by the full
Court. The other justices
may add cases to the
“discuss list.”
Here, former C.J.
Rehnquist [WHR] lists
cases for discussion.
Cases not listed by any
justice are automatically
denied.
Granting
Certiorari
Rule of Four – by
tradition, cert is granted if
at least 4 of the Justices
decide a case deserves to
be reviewed.
Here, Rehnquist and
O’Connor vote that they
will “join 3” meaning that
if three others want to
hear the case, they will
also agree to hear it.
Oral
Argument
Clerks prepare lengthy
“bench memos” for their
justices outlining the facts,
issues, and possible
questions to ask attorneys.
During oral argument,
justices constantly interject
with questions.
Research shows that oral
argument matters. Quality
arguments are more likely
to win than poor
arguments.
Justices often foreshadow
their position on the case
through their questions and
comments.
Justice Blackmun’s oral argument notes provide a grade for each attorney. SG Wallace
gets a “6” on a 10-point scale while his opponent, a “young” “36”-year-old from “UCLA” Law School scores a “5”
Conference
Vote
In Conference the justices meet
alone to discuss the cases they
have just heard oral argument in.
The Chief begins by stating the
facts of the case and stating his
vote. Votes proceed in order of
seniority with the most junior
justice speaking and voting last.
The justices keep track of the
voting and discussion.
Here, Justice Blackmun notes
that Justice Souter said he was
“troubled,” “close to” the
position of “J[ohn] P[aul]
S[tevens],” and not with “N[ino]
& K[ennedy].”
Opinion
Assignment
A day or two after
conference, opinions are
assigned by the Chief
Justice if he was in the
majority. If he wasn’t, the
opinion is assigned by the
most senior justice in the
majority.
Who writes the opinion is
important because if 5 or
more justices agree, the
majority opinion is the law
of the land.
Above: C.J. Rehnquist’s Assignment Sheet shows that J. Stevens assigned
one opinion to J. Ginsburg while J. Blackmun assigned one to himself and
one to J. Stevens.
Opinion Assignment Strategy
The Chief is concerned with
distributing the workload
evenly.
Chiefs often assign important,
groundbreaking cases to
themselves.
In closely divided cases,
opinions are assigned to justices
who are on the fringe or are
unsure of their position if their
vote will constitute a majority -
swing votes.
Some justices become expert in When Chief Justice Roberts and Justice Stevens
a particular area and get the disagree, Stevens controls the opinion assignment.
opinion assignment in those
cases.
Opinion Writing
The justice who the opinion is
assigned to directs his/her law
clerk to write the first draft of
the opinion. When the justice is
satisfied with the result, it is
circulated to the other justices.
At right are Justice Blackmun’s
hand-written corrections to his
clerk-written draft of a death
penalty case where Blackmun
decided, “I no longer shall
tinker with the machinery of
death.”
Coalition Formation: The Clerk Network
Chief Justice Rehnquist with his Law Clerks. 2002.
After the majority opinion author circulates a draft, the clerks from the other
chambers review it and if necessary suggest changes and make recommendations to
their justices.
Memos are then sent to the opinion author. The clerk who originally drafted the
opinion reviews them and makes recommendations to the justice about what should
or should not be changed and why.
Clerks mine the “clerk network” during lunch-time, in the hallways, and on the
basketball court—the highest court of the land—to find out information for their
justice on the positions of the other justices.
Coalition
Formation:
Separate
Opinions
Justices who are only partially
satisfied with the reasoning of
the opinion, but agree with the
result may issue their own
concurring opinions.
Justices who disagree with the
majority may write dissenting
opinions.
At left is one of J. Blackmun’s
circulation (log) sheets. He
used these to keep track of the
memos and separate opinions
circulated in each case.
Supreme Court Issues
Americans trust the Court far more than
congress or the presidency.
Some of the most controversial issues
in America have been decided by 5-4
votes on the Supreme Court: a
presidential election, affirmative action,
school prayer, abortion, etc.
Justices have life tenure.
No justice has ever been impeached and
removed from office.
Average life expectancy of justices is
87—ten years longer than U.S. average.
Should we make changes in judicial
tenure or in the way the Court operates?
J. Stevens was born on April 20, 1920
Conclusion
Appellate courts are very different from trial
courts - issues of law/procedure are
paramount, not facts.
Appeals are important not because they
correct trial errors, but because they give
judges opportunities to make public policy
that can have a wide impact on society.
In the Supreme Court, justices vote on cases
and provide the intellectual framework for
and subsequently edit the opinions.