Much of the work done by the Supreme Court is quite similar to the work done by other Federal appellate courts. The main difference is that the Supreme Court can overturn the decisions of lower Federal (and sometimes, state) courts, while only the Congress and the President, acting together, can nullify a decision of the Supreme Court. The Supreme Court can overrule its own past decisions, but rarely does so directly. Unlike decisions of the lower courts, Supreme Court decisions become, at least for a while, the law of the land. Although a decision by, for example, the Court of Appeals for the Fifth Circuit, becomes the law of the land in so far as all lower Federal courts within the Fifth Circuit are concerned, it does not bind the Federal courts in the other circuits. One of the fundamental reasons for the Supreme Court to take a case is a split among the Federal circuits; when it does so, what it says, provided it is not dictum (extraneous language unnecessary to its decision), binds the Federal courts in all circuits. The Supreme Court thus can have far greater impact on the United States as a whole than can any other court in the land.
In deciding the cases before them, Federal appellate courts are charged with resolving at least some of following issues:
Factual Matters.
Appellate courts rarely overturn the fact findings of trial courts except when those findings are egregiously inconsistent with the record below, are based on things erroneously admitted in evidence, or fail to take into account things improperly excluded from evidence.The Meaning of the Statute or Statutes Involved:
Many appellate cases involve some element of statutory interpretation. Some statutes are clear on their face, and some are not. In the absence of appropriate clarity, a court must decide what the statute was intended to mean when enacted. There is some latitude here, but not much; that latitude does not properly extend to consideration of what the statute would probably mean if more recently enacted, or what it should say were it to be passed now. To divine the meaning of a statute, courts look at its history and at what other courts have said it means. If one reasonable interpretation would raise a serious question of its constitutionality and another reasonable interpretation would not, a court will generally prefer the latter: Constitutional issues are generally sought to be avoided to the extent possible. Sometimes, a court will have to decide whether a statute was applied consistently with its legislative history, otherwise reasonably and, occasionally, "fairly." From time to time, it is also necessary to determine whether the statute was applied in an unconstitutional way.Constitutional Issues.
There may be some automobile mechanics who would prefer to rebuild an engine than merely to replace the spark plugs, because they can earn more money that way. If they earned the same amount of money, the great majority would probably prefer simply to change the spark plugs, even if they might enjoy the challenge of an engine rebuild. Few of the vast number of cases arriving for appellate review raise substantial Constitutional issues, and there are fewer in which such issues cannot be got around; that is what courts generally try to do. However, when Constitutional issues are squarely presented and have to be decided, they try to do so. It is in such uncommon cases that the judicial philosophies — and now, possibly, the empathies — of the judges may come into play.
Article comments
— go to most recent comments1 - Clavos
Leave it to Leahy to be among the proponents for inexperienced justices.
What a moron.
2 - Doug Hunter
They want someone who'll place the liberal agenda first and interpreting the law optional... pathetic. Then they bring the obligatory race and sex into it saying they want to nominate a woman or minority... aka, they are actively discriminating against white males. I thought discrimination based on race and sex was against the law. Even if they do want those characteristics doesn't it set a bad example to openly flaunt anti-discrimination laws? Where is the EEOC when you need it?
3 - Dave Nalle
Just so long as they don't pick another Italian...
Dave
4 - M a rk
From Sowell's article: "Appoint enough Supreme Court justices with "empathy" for particular groups and you would have, for all practical purposes, repealed the 14th Amendment, which guarantees "equal protection of the laws" for all Americans."
But doesn't the reverse hold as well? Appointing enough judges lacking empathy for certain groups would lead (has led?) to the same result.
5 - roger nowosielski
Treat everyone alike and make no allowances whatever - that's the essence of morality and justice. Empathy is for suckers.
6 - M a Rk
Spoken like a true solipsist.
7 - roger nowosielski
It would be helpful, Dan, if you were to provide some examples here when, in your opinion, the constitutional issues were improperly decided because of the justices' empathy (or what you might prejudice). This is, after all, your article's main point.
"However, when Constitutional issues are squarely presented and have to be decided, they try to do so. It is in such uncommon cases that the judicial philosophies -- and now, possibly, the empathies -- of the judges may come into play."
8 - roger nowosielski
It was tongue in cheek, Mark, in case you hadn't noticed.
9 - M a Rk
Yes, Rog. I understood the role you were portraying.
10 - roger nowosielski
What's being missed in this argument is that there has been a long standing practice to appoint the justices as based on their positions re: certain key and hotly-controversial issues, regardless of which party occupies the Oval office. This has certainly been the case with Bush's two appointees, and this tradition of politicizing the appointments, though unfortunate perhaps, is a fact to be reckoned with.
It would be rather unrealistic to expect that the present administration were to somehow discontinue the pattern and inject purity into the process.
11 - roger nowosielski
Of course, the party that's no longer in power has only hope as available resource - hence this grasping at straws.
12 - roger nowosielski
BTW, Mark, I'll have two articles coming up shortly - on the nature of historical progress and the material conditions which had made it possible, so I hope you'll participate when they're out.
13 - M a rk
I look forward to reading them, Rog.
14 - roger nowosielski
OK. Later then.
15 - Dave Nalle
I thought Roger was being serious. Ah well, another hope dashed in the era of hopey-changeyness.
Dave
16 - Glenn Contrarian
Dan -
You wrote a good article with clear, logical arguments - and you're right.
But the 'but' is almost obligatory in our discussions on this site - so of course I must ask what was your opinion on Bush v. Gore? I suspect I know what you answer will be....
17 - Clavos
For all of his decrying of the rigidity and adherence to ideology of the right, Roger is himself an unswerving liberal "progressive" (love that euphemism!). Any putative evidence to the contrary presented by him on these pages should be taken with an enormous helping of salt.
18 - Glenn Contrarian
Dan -
I just read your article again...and now it seems you're placing far too much emphasis on 'empathy'.
I know that if you listen to the right wing, that's the ONLY requirement they'll tell you Obama's looking for. Let's compare some of the OTHER qualifications Obama's looking for:
"I will seek someone who is dedicated to the rule of law, who honors our Constitutional traditions, who respects the integrity of the judicial process, and the appropriate limits of the judicial role"
Read that closely, then think "Harriet Miers", "Alberto Gonzales", "John Yoo", "Baybee"
Tell me, Dan - considering the right wing's track record of picking judges, do they have ANY room whatsoever to talk?
19 - Clavos
Tell me, Dan - considering the right wing's track record of picking judges, do they have ANY room whatsoever to talk?
Talk about strawmen!
What the hell do any of those have to do with Dan's right to express his opinion as to how the judicial selection process should be managed/improved?
That smacks of an attempt at guilt by association.
"I will seek someone who is dedicated to the rule of law, who honors our Constitutional traditions, who respects the integrity of the judicial process, and the appropriate limits of the judicial role"
Lip service when stacked against the "empathy" objective, as Dan thoroughly dissects in the article.
20 - Cindy
The 'rule of law' seems to be dredged up and utilized like one of those light sabers from Star Wars, whenever it's convenient to give an impression of being noble and on the side of truth, justice and all that mythical BS.
Words, words, words...I'm so sick of words. They seem like nothing but tools people use to warp reality sometimes.
21 - Baronius
Ma r
k - What role does empathy play in a legal decision? If it has any effect at all, it would be as an impediment to objectivity. "Too little empathy" doesn't make sense. It's equivalent to saying "too much impartiality".
Roger - The Bush appointees weren't chosen because of their record on specific issues. That is a gross misunderstanding. They were chosen because of their approach. In recent decades, 100% of Democrat-nominated justices and 50% of Republican nominees have been activists. Bush made his picks based on their originalism, not their politics.
Dan(M) - How would you feel about nominees with state supreme court experience?
22 - Baronius
Cindy, why did you put "rule of law" in quotes? It's not that you oppose "rule of law"; you oppose rule of law.
23 - Clavos
Dan(M) - How would you feel about nominees with state supreme court experience?
Good question.
Cindy, "Rule of Law" (with or without the quotes) is a fundamental principal of our national governance, and one of the more important ones, to boot. Among other things, it helps to prevent defendants from becoming victims of whim and/or fashionable and politically correct thinking on the part of jurists.
I can't understand why you would be opposed to it.
24 - M ar k
Baronius, your argument would work if empathy and impartiality were related as you imply.
Objectivity is 'in the eye of the beholder.'
25 - M ar k
Clavos, if one were to oppose the whole 'national governance' thing then it would follow that its fundamental principles would be on the shit list as well.
Among other things, it helps to prevent defendants from becoming victims of whim and/or fashionable and politically correct thinking on the part of jurists.
yer kiddin', right?