A commenter on the New Jersey Fourth Amendment case thread writes (some paragraph breaks removed),
Eugene – “the Justices rarely grant simply because of an erroneous decision of a state intermediate court of appeals”
Eugene, doesn’t that scream out loud to you about the fundamental flaw of ‘a system of laws’ as opposed to ‘a system of justice’ ? I don’t doubt the accuracy of your statement, but rather I cry out loud at the blatant stupidity and unfairness of a system that works on that principle. To paraphrase your characterization of SCOTUS ( and thus our entire system )( and I do not dispute your characterization ):
‘We don’t care HOW fucked up the decision is, as long as no judge has disagreed with it yet. Barring the exceptionally high hurdle on unConsitutionality, it’s perfectly OK for our system to render the most patently unfair, unjust, irrational verdicts you could imagine’. ( not that I characterize this particular case in that way )
Don’t you think this highlights such an overt sign of a broken and unfair ‘system of laws’ as is worthy and needy of being fixed ? How would you justify such a system ?
I can’t speak to what would be the optimal system, but let me explain how our legal system views the matter, not just as to this particular case but in general.
Generally speaking, you are entitled to two hearings by courts: You are entitled to a hearing by a trial court, and you are entitled to an appeal to an intermediate appellate court (whether a state intermediate appellate court, if your case was brought in state court, or a federal court of appeals, if your case was brought in federal court). In criminal cases, you are also (generally speaking) entitled to extra hearings on a petition for writ of habeas corpus, both in the state and federal systems, though you can only get review of a limited range of claims that way. But those are the only hearings that you are entitled to as of right.
You are not entitled to have your case heard on the merits by the state supreme court, or by the U.S. Supreme Court. You can ask that your case be reviewed, through a procedure called a “petition for a writ of certiorari,” or, colloquially, a cert petition; in many states, that’s called a “petition for review” or “petition for further review.” And the courts will consider those petitions.
But they can just refuse to hear your case, without deciding on the merits whether you were wronged by the decision below. They do not see their role as making sure that the right result is reached in every case in the state, or in the country. It’s not possible for them to do that — there are hundreds of thousands of appeals decided every year by state and federal appellate courts, and the state and federal supreme courts can’t reconsider more than a tiny fraction of those cases. Each litigant has had his two hearings, one at the trial level and one on appeal. Of course, it might be that justice still hasn’t been done, and yet another hearing would help that. But our legal system has concluded that those two hearings as of right is all that’s cost-effective for the taxpayers to provide.
What, then, is the business of the state and federal supreme courts? It is to clarify the broad legal rules for future cases, albeit while using the cases before them as a vehicle to do that. Because of this, the supreme courts generally agree to hear only those cases that they see as giving them the most likely law-clarifying bang for their buck.
Thus, if you can show the U.S. Supreme Court that there is a disagreement among federal appellate courts or state supreme courts (a so-called “circuit split” or “split among the state supreme courts”), the Justices will be more inclined to hear your case. The disagreement shows that there’s probably some need for clarifying the law. It’s unlikely that the law will become clearer without the U.S. Supreme Court’s involvement. And the presence of federal appellate or state supreme court opinions going both ways — often several going in each direction — may help the Justices think through the issue.
But if there is no split among the federal circuits or state supreme courts, the likely value of the U.S. Supreme Court’s considering the case becomes a lot less; among other things, the state supreme court might well step in and fix the legal problem itself in a future case (and it turns out that the state supreme court is indeed actually likely to step in, in this very case). [UPDATE: I mean to say this, but I forgot: If you can persuade the Justices that there is indeed a serious and important error below, you could get cert even without a split below, on the theory that this case is a good vehicle for clarifying the law in a way that prevents such errors in the future. It’s just not very likely.]
All this of course means that injustices in particular cases often won’t be corrected, and unjust rules will often persist longer than one might like. But remember that in our system, the state supreme courts’ job is not to correct every injustice, or even instantly fix every unjust legal rule. It is to use their limited resources to fix those legal problems that seem most pressing.
We could, of course, have a different system. We could, for instance, insist that the U.S. Supreme Court hear more cases — it used to hear about double the cases that it hears now — but that wouldn’t put much of a dent in the problem, since that will still be just 150 or so cases per year out of the hundreds of thousands of cases decided by state and federal appellate courts. And it might well reduce the quality of the decisions that are handed down. Or we could dramatically increase the size of the Supreme Court, and have judges sit in three-judge panels. But that would increase inconsistencies in the Supreme Court’s work product; and if the solution to that is a sort of “Supreme Court en banc” procedure, in which some cases will be heard by the entire Supreme Court, then we’d have the same objection about the Court’s refusing to correct some supposed injustices. Or we could add a third appeal as of right, to some super appellate court that sits below the U.S. Supreme Court. But that would be expensive, and again there would still be objections that the Supreme Court isn’t correcting all or even most of the injustices coming out of this third appellate court (whether federal or state).
Or we can stick with the current system, in which litigants have two shots at proving their case, and in which any “patently unfair, unjust, irrational verdicts” that survive those two decisions end up becoming final, unless the state or federal supreme court decides that this is the rare case that merits the supreme court’s time and attention. I can’t be sure that this current system is the optimal solution. But given the constraints that I’ve described, it seems to me like a pretty plausible solution.
(Note that the above is oversimplified in some measure. To make it a little less oversimplified: You technically have no federal constitutional right to appeal, even in criminal cases, but in practice appeals are available in nearly all state and federal cases. A handful of small states don’t have intermediate appellate courts; all appeals go straight to the state supreme court. In both the state and federal system, some cases provide for an appeal as of right state to the system’s supreme court — many states, for instance, provide for an appeal as of right to the state supreme court in death penalty cases. But that is the exception, not the rule.)