Old Books and Old Justices

In my frequent antique store book-hunting excursions, I often seek out old history and law books. The older the better. An old history or law book is like a time machine, zooming a current day reader off to a different world with different social norms, historical assumptions, and methods of thought.

To my delight, I was recently able to find a 1938 copy of professor Jerome Hall's Readings in Jurisprudence law school textbook for just two dollars. In it, along with dozens of well-known essays and articles about legal theory and judicial decision-making, is an excerpt from a 1921 essay by Benjamin Cardozo, at the time a state court judge in New York. Just over ten years later he would become a justice of the United States Supreme Court.

The excerpted article, "The Nature of the Judicial Process," describes Cardozo's multi-faceted approach to judging, an approach that would probably seem far too nuanced and malleable to the far more rigid contemporary schools of statutory and constitutional interpretation. 

Below is the excerpt as it appears in Professor Hall's book:

My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case, must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to precedent. There shall be symmetrical development, consistently with history or custom when history or custom has been the motive force, or the chief one, in giving shape to existing rules, and with logic or philosophy when the motive power has been theirs. But symmetrical development may be bought at too high a price. Uniformity ceases to be a good when it becomes uniformity of oppression. The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare. These may enjoin upon the judge the duty of drawing the line at another angle, of staking a path along new courses, of marking a new point of departure from which others who come after him will set out upon their journey.
If you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself. Here, indeed is the point of contact between the legislator's work and his. The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law. How far he may go without traveling beyond the walls of the interstices cannot be staked out for him upon a chart. He must learn it for himself as he gains the sense of fitness and proportion that comes with years of habitude in the practice of an art.

And, as a bonus relic from the past, I found a brief (and positive) review of Professor Hall's book, published in the 1939 volume of the fledgling Louisiana Law Review. The reviewer concludes:

The VERY Basics of Federal Court Procedure

One of my newest pet projects is to write useful explanations of the law for lay audiences. There seems to be a legitimate demand for such. So, several days ago, I posted an open question on Twitter: "What is a legal concept or aspect of the law that you know you don't understand but really wish you did?"

I got a few responses online, but I got a couple offline, too, and one of those offline answers was a plea for an explanation of the basic procedure of a federal case like Bourke v. Beshear. I can see why this might be a topic of much interest but little understanding, so I'll try to provide a very general, minimally-technical explanation of how such a case can move through federal court. Hopefully readers can glean the basics.

First, you need a case. To have a case in federal court, before anything else, you need to have "standing." And to have standing, you must have suffered an "injury-in-fact." An "injury" doesn't necessarily mean you have been physically hurt (though it can), it just means somebody has done you wrong in a way that the law recognizes. For instance, that could mean somebody has robbed you, or broken a contract with you, or deprived you of a benefit you were supposed to receive, or maybe the government has passed a law that picks on you for no good reason. All of those situations give rise to "injuries" which federal law recognizes.

If you've suffered an injury (or think you have), you then file a lawsuit in federal court against the person, organization, or government you think is to blame for that injury.

But where do you sue? Which federal court is the proper one to hear your case? An important preliminary note before we proceed: suing someone is a civil court matter. By contrast, a government charging someone with a crime is a criminal matter. This discussion will focus on civil court matters.

The federal court system has three primary levels: trial courts called "Districts," appeals courts called "Circuits," and the big daddy of them all, the U.S. Supreme Court. You can think of the system as a giant pyramid: there are lots of district courts on the bottom, fewer circuit courts in the middle, and just one Supreme court at the top.

So you have to file your initial lawsuit in the lowest layer of the federal court pyramid: a U.S. District Court. But there are 84 district courts in the 50 states (94 total if you count outside territories)! How can you possibly pick the right one? In general, picking the right court requires understanding of both "jurisdiction" and "venue." 

Federal district courts can't just hear any case they want. There are certain criteria to be met for the court to have jurisdiction. Very generally speaking, federal district courts can hear the following:

  • Civil actions arising under federal laws (the Constitution, federal statutes, and treaties). This is called "federal question" jurisdiction.
  • Civil actions involving citizens of different states. This is called "diversity" jurisdiction.
  • Civil actions in which the United States is a party.

There are other situations where district courts have jurisdiction to handle a lawsuit, but the above examples are the big three.

Next, the correct "venue" must be chosen. Again, quite generally, the proper venue is determined by either the home base or residence of the defendant, or the location where the injury occurred. Consider this hypothetical: if a Clarksville, Indiana resident suffers a legal injury in Louisville, Kentucky at the hands of Louisville resident, the proper venue would be the Western District of Kentucky, the district in which Louisville is located. However, if a Louisville resident suffered an injury in Louisville at the hands of a Clarksville resident, the proper venue would be either the Western District of Kentucky or the Southern District of Indiana (where Clarksville is located). It's often more complicated than that, but these are pretty typical examples.

Kentucky has two federal districts: the above-mentioned Western District, based in Louisville, and the Eastern District, based in Lexington. Initially in the Bourke case, three couples filed suit in the Western District and one couple filed in the Eastern District, but the cases were consolidated (at the court's discretion) in the Western District under Judge John Heyburn. Judges at every level of the federal court system are appointed for life, unlike state judges in Kentucky, who are elected. Heyburn was appointed in 1992 by President George H.W. Bush.

Once the Bourke case was consolidated in the Western District of Kentucky, how the case would progress had to be determined. Generally, cases filed in district court are put on a common procedural track:

  • Initial pleadings (complaint by the plaintiff, answer and/or counterclaim from the defendant)
  • Discovery (exchange of documents, information, and witness testimony by the parties)
  • Dispositive motions (written attempts to end the case before trial, through dismissal or summary judgment),
  • Settlement conference (if possible)
  • Trial (either before a jury or in front of the judge alone)

Bourke was different, though. Judge Heyburn, like district court judges in Utah, Oklahoma, Texas, Virginia, Ohio, and Tennessee facing similar challenges to discriminatory marriage laws, didn't perceive the standard litigation procedure as appropriate. Instead, Judge Heyburn treated the case as purely a matter "of law," not a matter "of fact." Therefore, no discovery, depositions, or trial were necessary. Heyburn instead imposed a briefing schedule, with the outcome of the case to be determined by written arguments only.

Whether by trial or by dispositve motion, a federal court case ultimately ends with a final order from a judge. A final order, except in some rare exceptions, is necessary before either party can file an appeal. The final order in the Bourke case was issued in February. But to which court does the appealing party turn?

The federal district courts are organized under an umbrella of "Circuits," thirteen appellate courts which hear appeals from federal district court decisions. The circuits are organized as collections of states. For example, the Sixth Circuit Court of Appeals hears all federal district court appeals from Tennessee, Kentucky, Ohio, and Michigan. The Seventh Circuit hears cases from Indiana, Illinois, and Wisconsin. The two exceptions to this system are the D.C. Circuit Court of Appeals and the Federal Circuit Court of Appeals.

Appeals in the circuit courts are generally presided over by a panel of three circuit judges. The parties (now called the "Appellant" and the "Appellee") first write long briefs arguing why the lower district court decision was wrong or why it was correct. Then, upon request of the parties, the three-judge panel presides over an oral argument, in which lawyers for each side stand and deliver speeches bolstering their positions. These speeches are frequently interrupted by pointed questions from the judges, who seek concise answers to clarify the legal issues and implications raised by the case. This process is usually quite nerve-wracking for the attorneys.

When a party appeals a federal district court ruling, they have to do so on specific grounds. For example, a party can argue that the district court judge applied the wrong law. Or they can argue that the judge failed to follow the correct procedure. The circuit court then issues a narrow ruling on the appellate issues actually raised by the parties. In other words, if a party appeals a district court order only on the basis that the wrong case law was used, the circuit court then addresses that issue only. Was the district court in error on the law? If not, the district court decision is "affirmed." If the district court made an error, the case can be "remanded" to be heard again by the district court with specific corrective instructions, or it can be "reversed" entirely, the loser below becoming the winner instantly.

Let's say a Plaintiff won a district court case, and the Defendant appealed to the circuit court. After oral argument, the circuit court reversed the district court and the Defendant became the winner. In the federal court system, the Plaintiff now has three options: it can take its ball and go home; it can request a rehearing "en banc," which is Latin for "by all the judges in the circuit" instead of just three; or, the Plaintiff can file a long, formal motion called a "petition for certiorari" to the U.S. Supreme Court. "Cert petitions" are lengthy, bound documents requesting that a circuit court decision be reconsidered by the highest court of the land. Once again, specific issues must be brought up, and the Court, in most cases, restricts its ultimate ruling to the arguments made by the parties.

The U.S. Supreme Court has broad discretion in determining which cases it will hear. The vast majority of cert petitions are rejected with no explanation. For those cases, whatever the circuit court decided becomes the final word. The cases which are "granted cert" get added to the Supreme Court's docket. The parties then brief the issues in a series of long written documents discussing the relevant factual and procedural history of the case, the statutes, cases, or other law which are involved, and anything else the parties think the Court should think about before ruling.

In most Supreme Court cases, once the briefing is done, the parties appear for oral argument. Oral argument before the Supreme Court is very similar to oral argument before a circuit court, but instead of three judges firing pointed questions at the attorneys, there are eight.* The Justices (as they're called on the Supreme Court) are big personalities with their own particular idiosyncrasies. Justice Breyer, for example, is often giggly, boisterous, and interested in pragmatic implications. Justice Scalia, on the other hand, is articulate but sometimes badgering, not one to suffer arguments he philosophically disagrees with. Once oral arguments are complete, the Justices then formulate their decision in private. The process often takes many months.

The Supreme Court, like the circuit courts below them, have three primary options: they can affirm the circuit court's decision; or they can remand the case to the district court to be retried (usually with specific instructions or new clarity in the law); or they can reverse the circuit court, leaving the original district court decision as the final, binding ruling. Other options exist, of course, but those are the most common.

As one final hypothetical to show you how complicated the system can be, consider this timeline for a make-believe case we'll call Case X.

  1. Case X is tried before the Western District of Kentucky.
  2. The Western District judge rules that the Plaintiff wins Case X.
  3. The Defendant appeals to the Sixth Circuit Court of Appeals.
  4. The Sixth Circuit rules that the Western District judge applied the wrong law, remands the case for retrial in the Western District.
  5. The Plaintiff files a cert petition to the U.S. Supreme Court, appealing the Sixth Circuit ruling.
  6. The Supreme Court grants the cert petition, decides to hear Case X.
  7. The Supreme Court affirms the Sixth Circuit, meaning Case X still must be retried before the Western District.
  8. Case X returns to the Western District to be retried, effectively restarting the entire process.

I would highly suggest that any readers still conscious and interested in federal procedure do their own research. The rules are complicated and the full range of outcomes is diverse. Hopefully this relatively brief guide has either piqued your interest or helped you realize never to ask questions about federal procedure ever again.

*There are actually nine Justices of the Supreme Court, but Justice Clarence Thomas hasn't asked a single question during any oral argument since February, 2006.