Guest Blogger:
Roger Hanson
Two recent procedural fairness blogs try to identify workable criteria of procedural fairness in appellate courts and especially during oral arguments. The bloggers rightly point out the importance of how judges conduct the proceedings and emphasize the importance of civility in questioning both sides and letting both sides address the court..
However, isn’t the acid test that attorneys or pro se litigants apply whether the judges understand the issues in the case? If so, isn’t a pertinent and operational criterion that the judges know the facts? Presumably, U.S. Supreme Court Associate Justice Antonin Scalia flunked this test when he brought up the Cornhusker Kickback in the recent argument over the Affordable Health Care Act. His behavior suggested an incomplete and incorrect understanding of the provisions of the law under review.
A related test concerns what the judges say about the briefs in a case. If so, isn’t it also pertinent and feasible to assess appellate judges by expecting them to address the dispositive issues submitted in the briefs raised by counsel or pro se litigants? Certainly judges are entitled to ask other questions that they believe revolve around what they think are the dispositive issues. However, in the American appellate system where premium value is placed on the briefs, shouldn’t oral argument recognize this established value?
One more test might focus on the authorities raised in the briefs. If so, isn’t it feasible and relevant to assess whether the most eminent previous court decisions cited by counsel or pro se litigants received some recognition? Yes, judges can easily make new law, but they operate in a legal system where past authority counts. And in the recent Affordable Health Care Act oral argument, I didn’t hear a lot of discussion about previous and relevant U.S. Court of Appeals decisions. That omission was striking to me as an observer.
It seems to me that additional tests are possible that concern the judges understanding of the issues.Those tests are worthy of future research and legal analysis, in my opinion.
Roger Hanson lives in Denver and is engaged in legal research for the purposes of legal reform. He assisted the Right Honourable the Lord Woolf in his report of civil justice in England and Wales and has worked in Afghanistan and the Philippines in addition to American state and federal appellate courts. He always roots for the Kansas Jayhawks.
Procedural Fairness For Courts and Judges 
I think it is important to distinguish between the reality of appeals courts and public perceptions. The public may know little about the actual nature of appellate court actions, since people generally do not have much information about such remote courts. However, people do have views. I did a study of views about the USSC among the general public and was struck by the lack of “don’t know” responses. People have views about whether the courts were neutral, considered the views of people like themselves, etc. And, these views (whether accurate or not) were connected to whether people said that they ought to defer to the decisions of the court.
With the USSC studies consistently find that the Court has great authority among members of the public because they are viewed as neutral and rule based decision makers. Hence, the Court has a lot to lose if it becomes seen as too politically motivated. Recent public opinion polls raise the possibility that the Court is losing at least some of its legitimacy and is being seen as more political. If so, the Court is likely to lose some of its authority.
Of course, with appellate courts the question is what losing authority would mean. People do not obey such courts in the way they obey a local judge or police officer. But studies show that the public has views about which branches of government ought to have the authority to decide different types of issues and the Court may find that the public is increasingly unwilling to view the Court as a fair decision-maker in various public policy arenas. Such a loss of legitimacy could lead other branches of government to be more proactive in seeking to curb Court authority.
The bottom line to me is that studies of the public show that the belief that the Court makes decisions using fair procedures is central to their acceptance of its authority.
One interesting development that may also shape views about the Court is their willingness to release audio recordings of their arguments to the general public. It will be interesting to see how such a glimpse into a formerly nontransparent decision-makign body will shape public views. Transparency is generally something that builds legitimacy, but of course that depends upon what people see when they look within the Court. Do they see law or do they see politics?
Tom Tyler