Archive | Apppellate Procedure

Are Conservative Judges Better? Evidence from Geoff Stone

Prof. Geoff Stone argues that conservative Supreme Court justices are more ideologically inflexible and less meritocratic than their liberal counterparts. His evidence for this is that

Of the 20 law clerks appointed this Term by the five conservative Justices — Roberts, Scalia, Kennedy, Thomas and Alito, 18 of the 20 — or an astonishing 90 percent — clerked last year for a Republican-appointed judge. Of the 16 law clerks appointed this Term by the four more liberal Justices — Ginsburg, Breyer, Sotomayor and Kagan, only 9 of the 16 — or 56 percent — clerked last year for a Democratic-appointed judge.

I would not rest any theory on this information, but if I would, it could easily support quite different explanations.

1) Given that the court picks clerks every year, data from one year is not very interesting; there are no doubt fluctuations. Any serious discussion of the issue would require looking across a period of year. I understand Stone may not have wanted to this – any more than I do – but then it is probably not fair to say one year’s hiring “shows” anything. Prof. Brian Leiter surprisingly calls this “hiring patterns,” but I don’t see how one year can be a pattern.

Indeed, the numbers Stone cites sound impressive in terms of percentages, but are really just a difference of a few clerks. Stone admits this is just a “tidbit,” but then goes on to say it “reveals… what is really going on.”

2) Now assuming this “pattern” is true, one possible explanation is that there is more conservative-to-liberal drift on the bench than vice versa. Thus there are more Republican-appointed judges with liberal tendencies than vice-versa.

3) Perhaps Stone should have called his article “The difference between conservative and liberal JUDGES.” The relatively [...]

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Supermajority Rules for Court Opinions, and “Physical Precedent”

Reading through a recent Georgia case, I ran across a term I hadn’t heard of before — “physical precedent.” And in the course of looking into this, I learned that Georgia courts, unlike most courts, have a form of supermajority rule for when a decision becomes binding precedent.

Historically, “physical precedent” seems to have been a nearly exclusively Georgia term for a precedent in which something was done, but without a reasoned consideration of whether it should have been done, and perhaps even without any controversy by the parties about whether it should have been done. “[T]he expression ‘physical precedent’ merely indicates that a thing has been done, but not that it has been decided to have been rightly done.” Thus, for instance, a 1902 case — the earliest one I could find that uses the term — says,

It is true that in each of those cases the solicitor general was ruled and answered, and that judgment was pronounced by this court; but a reading of the facts of the cases and the opinions therein will show that the question as to the liability of the solicitor to rule was neither raised nor decided. In neither case did the solicitor demur to the rule, and the cases merely decided the priorities of the liens of the parties concerned. If there had been a demurrer in either case, the decision would doubtless have been in accord with what is decided in this case. The cases are, therefore, not binding as authority upon the question now decided, but are mere physical precedents.

A physical precedent was thus less binding on future courts than a reasoned precedent would be, though it could be influential. (Where the label comes from, by the way, I can’t say; the 1902 decision used it as if [...]

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7th Circuit to Conrad Black: No Reply Brief for You!

Last Term, the Supreme Court vacated former executive Conrad Black’s conviction on the ground that the “honest services” fraud instructions given in his case were invalid under Skilling v. United States, and remanded for a determination whether the error was harmless. On remand, the Seventh Circuit (Posner, Kanne, and Sykes–under circuit procedure, the same panel that heard his first appeal) reversed two fraud counts, but affirmed another, as well as an obstruction count.

Black filed a petition seeking only rehearing en banc–not panel rehearing. The court called for a response (indicating that, under Seventh Circuit procedures, one or more judges had requested one), and the government filed one. Because neither the Federal Rules of Appellate Procedure nor the Seventh Circuit rules provide for a reply brief as of right, Black filed it as an attachment to a motion requesting leave to file a reply. The motion was denied two days later (yesterday) in a single-judge order. The author of the order was Judge Posner, author of both of the Seventh Circuit’s opinions in the case.

Former Seventh Circuit clerks, chime in here, and I’ll update this post to correct any misstatements of Seventh Circuit procedures.

Under Seventh Circuit procedures, motions for leave to file a reply are considered “nonroutine,” and, after review by a staff attorney, are submitted to “the motions judge, and if necessary, the motions panel.” The Seventh Circuit’s written procedures don’t specify how the motions judge or panel are assigned. I would have thought that, following the practice for “duty” judges generally, the judge or judges randomly assigned to duty the day the motion was considered would pass on it. But (Seventh Circuit cognoscenti, a little help here please) it may be that motions involving an already-argued case [...]

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