The Politics of the Federal Judiciary: Tiered Appellate Decisionmaking
Burbank, Stephen B., Judicature
The history of Proposed Appellate Rule 32.1, which would prevent courts of appeals from forbidding citation of federal opinions, suggests that rulemakers need to confront both the potential and the limits of strategic behavior intended to defeat a proposal.
For more than 20 years, in speeches, articles, and one famous opinion,1 the late Judge Richard Arnold elaborated the reasons for his opposition to practices of federal appellate courts in disposing of cases by means other than the traditional signed, published, and precedential opinion. His was not the only note of alarm raised, as scholars and practitioners joined the chorus, and defenders of nontraditional dispositions, within and without the judiciary, took up the challenge to justify what the courts of appeals were doing.
In the last two decades, these practices have become more common, and although both the frequency of departures, and the precise details of the modes of departure, from the traditional model vary among the circuits, it is safe to say that continued invocation of that model in describing the work of federal appellate courts can be as misleading as invoking the model of trial can be in describing the work of district courts. In any event, grouping the practices under the term "unpublished opinions" is certainly misleading because advances in technology have enabled, and the E-Government Act of 2002(2) now requires, the on-line availability of most opinions that are not published in bound volumes (including, as of 2001, West's Federal Appendix), because practices vary concerning the status of such opinions as precedent and the permissibility of citing them, and because in any event nontraditional opinions do not exhaust the means by which today's appellate courts depart from the traditional model. For those reasons, I prefer the term "tiered appellate decisionmaking."
A consideration of Judge Arnold's judicial and extrajudicial writings about tiered appellate decisionmaking reveals that for him such practices represented a threat to judicial accountability, and hence to judicial independence, in two dimensions. First, by loosening the restraints of precedent and of the common law method of making law, they can dilute the judiciary's accountability to the past. Second, as a result of the processes used to determine which cases will be handled at which tier of appellate decisionmaking, norms concerning the care with which they will be handled, the division of labor in handling them, and rules about precedential status, dissemination, and citation of decisions, tiered appellate decisionmaking can dilute the judiciary's accountability to the present and the future.
Judge Arnold believed that the federal judiciary must have the "continuing consent of the governed"3 in order to do its job. He also believed that, once a court has observed all jurisdictional limitations on its power, it must render and accept responsibility for a decision, however unpopular, that the law requires. From this perspective, his repeated expressions of concern about judicial accountability represented underlying anxiety about the prospects of judicial independence, the continuing willingness or ability of the federal courts not to "pull [their] punches"4 when the law requires an unpopular decision.
Judge Arnold's concerns about judicial independence and judicial accountability implicate die politics of the federal courts. Yet, the need for more federal judges who are adept at the political arts is not confined to that realm. Indeed, the need is equally acute, much more obvious, and presumably less controversial, in the host of nonjudicial activities in which the modern federal judiciary engages, many of which bring the judiciary's representatives in contact with elected politicians and their rep resentatives. The overarching question is how federal courts and the federal judiciary can participate in politics without becoming a victim of politics. …