"Conservative" v. "Liberal" Courts - A reality check.

Ken over at CrimLaw has posted here about his expectations of what a "conservative" court such as the ones in his state would/should do when interpreting a constitutional provision or a statute. Although he seems to have his tongue a little bit in cheek, his post did stimulate some thoughts of my own on the subject.

Over the years, I have come to know well quite a few appellate judges from around the country and while every judge has their own "judicial philosophy," you might be surprised to learn how little it matters in most of the day-to-day decision making process of judges lower on the appellate food chain than the highest court in the land.

In bullet format for whatever they may be worth, here are some of my own observations about the realities of the way cases are actually decided in lower appellate courts:

• In 98% of the cases decided, the judge's "philosophy" has no impact at all on the outcome of the case because (a) the law is settled and virtually all judges of whatever shade of conservative to liberal philosophy honor their obligation to be bound by the precedent of higher courts and/or (b) respect for the principle of stare decisis. I can't improve upon the late Chief Justice Rehnquist on the rationale for the latter point - "That is the principle that once an issue has been decided, it should stay decided. You can't constantly be re-litigating things without doing a lot more damage than just leaving them in place."


• For the most part, even the most "activist" of judges will defer to the legislature on non-constitutional policy matters, whether they agree with the policy or not.


• When construing statutes, the vast majority of judges of all philosophical stripes, try very hard to discern the actual intent of the legislature by following the various traditional principles of statutory construction. As Ken's post points out, the legislators don't always make this easy and that is no doubt the reason for both Chancellor Otto von Bismarck's famous quote that one should never see either sausages or laws being made and also the reason that the reference work used by almost all courts, Sutherland's Statutory Construction fills four volumes not counting supplements (at least the edition in my law library does). Many statutes are poorly written, convoluted and can often be held up as an example of how to flunk a fourth grade Language Arts class. Nonetheless, I don't know of many examples of an appellate judge simply substituting their own draft of a statute for whatever came out of a legislature. Legislative intent, like beauty, may often seem to be in the eye of the beholder but the courts really do try to adhere to it in interpreting statutes, even if they don't like the result. Also, Ulysses Grant once said that he knew of no better way to get rid of obnoxious laws than their stringent enforcement.


• Believe it or not, even "activist" judges have a great deal of respect for, and give deference to, people who are actually elected by their constituents to represent their interests. This is mostly true even in states where the judges are also popularly elected and have their own "constituents."


• Most layman don't know about, and many lawyers who should know better don't appreciate, the nuances of the standard of review in each case. Cases in this country are resolved under an adversary system of justice and that means that the lawyers have to make judgment calls for their clients including deciding on both trial strategy (what legal theory to advance and supporting evidence to offer) and trial tactics (whether to object or not and on what grounds). Appellate courts don't review the lawyers' decisions for errors. They only review the decisions of the trial court for error and if you didn't give the trial court the opportunity to get it right by stating your position clearly and providing the trial court with the legal foundation of that position, you generally won't get much sympathy on appeal - from either a "liberal" or a "conservative" judge.


• In a very, very small fraction of the total number of cases, a constitutional question is presented, the outcome of which isn't controlled by clear precedent, and the judges have an opportunity to actually "make" the law. Only in those very few cases (although they obviously have impact far beyond their numbers) are most appellate judges presented with a real opportunity be an "activist" if they are so inclined. Some judges obviously are so inclined and therefore these are the cases that all the fuss is about.


• Believe it or not, reasonable minds can differ about many of these things and the differences often have nothing to do with overall judicial philosophy. We are a very result oriented society and therefor if you like the result of a case, you tend to assume that the judges involved did as well and you would often be mistaken. The best appellate judges never think about the bottom line result or advancing abstract philosophical concepts, they only think about what result is compelled by a proper legal anaysis.


• In short, I (and the vast majority of all the appellate judges I know), quite often find myself writing or joining an opinion that affirms a trial court for a decision that is a long way from representing what I would have done had I been the trial judge or upholding a statute that enshrines a policy I don't personally agree with. The discipline for any appellate judge is to be consistent in applying things like the rules of court, the standard of review or the rules of statutory construction and letting the chips fall where they may.

I'll get off the soapbox now.