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.