Archive for the ‘Justice Antonin Scalia’ Tag

Why Judicial Apologies Matter for Procedural Fairness   2 comments

Guest Blogger: Maxine Goodman

My recent article, Removing the Umpire’s Mask: The Propriety and Impact of Judicial Apologies, 4 Utah L. Rev. 1529 (2011), describes instances when judges have apologized in their courtrooms to parties or lawyers.   Examples include Dallas State District Judge Faith Johnson apologizing to a defendant’s family for throwing a “recapture party” after the defendant, who was briefly a fugitive, was captured.  At the party, the judge had balloons and served ice cream.  Judge Johnson later said she was sorry if her celebration offended anyone.  Judge Thomas M. Lynch IV apologized to Anthony Caravella who spent 26 years in jail and was later exonerated based on DNA evidence.  The judge apologized to Caravella on behalf of the criminal justice system of Florida.  And, Judge Vanessa Gilmore, a federal district court judge in Houston, Texas, apologized to the victims of a mortgage scam after sentencing the defendant to what the judge considered too light a sentence.

These examples are but a few of the instances when judges apologize in court, either on their own behalf or on behalf of the State.  The article posits that judicial apologies are warranted and necessary when a judge is responsible for causing harm to a party or lawyer and when the apology is sincere.    To be sincere, the apology must acknowledge the harm and not provide any conditions, like “if this behavior offended anyone.”  As an example of a proper apology, Justice Scalia apologized for unnecessarily chastising a lawyer for failing to include a reference to a statute in the lawyer’s brief, when he had, in fact, done so.  Justice Scalia apologized, saying “Mr. Bress, I want to apologize to you for accusing you of not printing 2254(d) and (e) in your brief.  You indeed did.”

Judges should not apologize when they are not responsible for the wrongdoing and their apology is not authentic.  These apologies come across as disingenuous and are unlikely to elicit forgiveness.  When the apology is politically motivated or compelled by accusations of judicial wrongdoing, the judge’s apology is likely to serve as a confusing gesture, unlikely to help the offended party regain trust in the judge and, by extension, the judiciary (and potentially the legal system).

The primary reason for concern over judicial apologies is the need for procedural fairness.  Research shows that parties are typically more likely to consider a court proceeding fair when the judge has treated them courteously, with dignity and respect.  According to this approach, a judge treating a party with courtesy is more important for the party’s perception of the fairness of a proceeding than the outcome of the hearing or trial.   Accordingly, a judicial apology can play a significant role in a party’s perception of the court’s fairness when a judge who has, for example, lost his temper and chastised a party or lawyer, offers an authentic apology to the party or lawyer.

Maxine Goodman is a Professor at the South Texas College of Law

Discerning Procedural Fairness in Appellate Courts   1 comment

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.

Focused on Fairness: The Public Turns Its Attention to the U.S. Supreme Court   2 comments

Beginning Monday, March 26, 2012, public attention will focus on the United States Supreme Court in a way that’s essentially unprecedented. Sure, there have been many important cases in the Court’s history, but few have had timing like this. It’s a Presidential-election year. The health-care cases divide the country, even if the precise legal issues are not yet well understood by the public. And there are lots of pundits poised to comment, few of whom will actually be objective.

In this environment, the Court will hold three days of oral arguments on issues surrounding the Patient Protection and Affordable Care Act—the 2,400-page law called Obamacare by its detractors and the Affordable Care Act by its supporters. The nation’s 24-hour news cycle will be focused like a laser beam on the Court, but there will be no television cameras, no live radio broadcast, and no blogging, twitter, or other reporting from the courtroom.

Even so, what the public perceives about whether the justices gave a fair hearing to both sides may have a lasting impact on public attitudes toward the judicial system at all levels. What will the public be looking for? And is the Court equipped to provide it?

Based on decades of research, the public will be looking for the elements of procedural fairness—voice, neutrality, respect, and trustworthy authorities. To be sure, the public will also make judgments about the merits of this case. But there is a lot more at stake: the legitimacy of the judicial process is also being tested.

To pass that test with the public, the Supreme Court needs to conduct the argument with a keen eye on the goal of demonstrating that courts decide issues in a way different than the political debates of a presidential campaign or the legislative process. Among other things, to achieve procedural fairness, the justices will need to let attorneys actually make some points without being interrupted, to appear willing to listen (better yet, actually be willing to listen), and to avoid arguing from a clearly predetermined position.

The normal case in the U.S. Supreme Court gets one hour for oral argument. This case is getting five and one-half hours spread out over three days. Allowing that extra time was wise from many perspectives. First, justices who want to explore the issues along with the advocates will have the time to do so, rather than feeling the need to quickly stake out a position and argue for it in an attempt to persuade colleagues in advance of the justices’ private case conference where decisions are made. Second, media coverage will emphasize the extent of time devoted to hearing argument in the case, said to be unprecedented in the modern era. Third, the media will be able to explain each of the major issues during the time slot in which argument is being made.

But even with ample time, the attitudes demonstrated by the justices will frame perceptions of their fairness. Senator John McCain attended the oral argument on the McCain-Feingold campaign-finance bill that he had sponsored. When the Court ultimately ruled in Citizens United v. FEC (2010) that the government could not ban political spending by corporations in candidate elections, Sen. McCain spoke in an interview about the attitudes he had observed during oral argument:

“I was not surprised at the Supreme Court decision. I went over there to observe the oral arguments. It was clear that Justice Roberts, Alito, and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to [the law.].” (CBS, Face the Nation, Jan. 24, 2010.)

Sen. McCain has certainly been around the block and heard harsh attacks. Yet he remembered several months after oral argument that there had been “very skeptical and even sarcastic comments” made by several justices.

Even though the Court refused C-SPAN’s request to televise the hearings, the Court will expedite release of transcripts and audiotapes from its normal practice, in which tapes aren’t released until the end of the week. This time, tapes and transcripts will be posted on the Court’s website as soon as they are available; the Court’s public-information office says that the morning session should be available by 2 p.m. each day and that the afternoon session on Wednesday, March 28 (the only afternoon session), should be available by 4 p.m. that day.

This means that the public will be able to hear—the same day—the tone used by justices in asking questions or, for some justices, making arguments. The admonition given recently in this blog by Minnesota appellate judge Francis J. Connolly is one that members of the U.S. Supreme Court should pay heed to next week: “We need to remember that we are not cross-examining a hostile witness but rather probing an attorney’s argument.”

Because of the media attention that will be focused on the U.S. Supreme Court next week, this will be a seminal moment for public perceptions of the justice system. The justices can do a great service to the country by demonstrating procedural fairness throughout the arguments.

Steve Leben and Kevin Burke

[For background about the Supreme Court’s proceedings on the health-care law, and for links to transcripts and audiotapes as they are released, go to SCOTUSblog.]