The American Judiciary

S >> Simeon E. Baldwin, LLD >> The American Judiciary

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Appellate courts are of many kinds. Some are such exclusively;
some mainly. In others the functions of entertaining appeals is
a minor one, most of their time being occupied in trying original
causes. An appeal from judgments of a justice of the peace, for
instance, is generally given on the merits to county courts, but
the greater part of the litigation before them comes there in the
first instance. So the judgments of county or other minor courts
are often reviewable on appeal for errors in law in some superior
court which, like them, is principally occupied in the exercise
of an original jurisdiction.

When the American colonies passed into States, as has been seen,
they were habituated to the thought of a supreme controlling
authority exercised by one tribunal of a judicial character of
last resort. The judicial committee of the Privy Council had
administered this sovereign power for them, and for a long period
of years, with general acquiescence.[Footnote: See Chap. I.] The
uniformity of result thus obtained was acknowledged to be
advantageous. It was now necessary to replace them by American
courts of last resort, and it was not difficult in doing so to
improve upon the English model. The time had come for
separating, as far as it could conveniently be accomplished,
judicial from political power.

Virginia was the first to act. A few days before the Declaration
of Independence she adopted a Constitution (under which the
government, was carried on until 1830, though it was never
formally submitted to or ratified by the people) providing for a
separate judiciary headed by a Supreme Court of Appeals whose
judges should hold office during good behavior, and be ineligible
to the Privy Council or General Assembly.

This divorce of judiciary and legislature was not the plan
universally followed.

New Jersey, in which as a colony the Governor and Council had
possessed an appellate power like that vested in the English
House of Lords, was so well satisfied with this arrangement as to
continue it in her Constitution of July 3, 1776, and up to the
present time puts upon her Supreme Court a certain number of
judges who give but a part of their time to this work, and are
not necessarily (though in practice of late years they generally
have been) lawyers.

New York, in her Constitution of 1777, pursued a somewhat similar
plan. Her highest court was one "for the trials of impeachments
and the correction of errors." Its members were the Senate with
the Chancellor and judges of the Supreme Court. When a judgment
of that court was brought up for review the judges were to state
their reasons for giving it, but had no vote. This scheme was
adhered to with little modification until 1846. What made it
tolerable was that many of those elected Senators were naturally
lawyers, and that to be in the Senate soon became the ambition of
a lawyer with any desire to know how it would feel to be a judge.
Able and learned opinions were pronounced by such men in
exercising their judicial functions, and some of them in the New
York reports are still frequently the subject of reference as
clear and satisfactory statements of legal principles.

Connecticut, in 1784, when she instituted for the first time a
court of last resort, made it up of the Lieutenant Governor and
the twelve Assistants, and soon added to it the Governor himself.
A plan of this kind was likely to work in that State, as in New
York, better than it looked. Lawyers by this time had come to
fill most of the higher offices of state. Although the
Assistants were elected annually it was under a complicated
scheme of nomination, which, unless in case of a political
revolution, ensured re-election in every case. A majority of the
Assistants were always members of the bar. They were also
Federalists from the beginning of party divisions in the country.
Naturally, the Republicans found such a state of things
intolerable. All the power of government in Connecticut, said
one of those who were celebrating Jefferson's second election to
the Presidency in 1804, "together with a complete control of
elections, are in the hands of seven lawyers who have gained a
seat at the council board. These seven men virtually make and
repeal laws as they please, appoint all the Judges, plead before
those Judges, and constitute themselves a Supreme Court of Errors
to decide in the last resort on the laws of their own making. To
crown this absurdity, they have repealed a law which prohibited
them to plead before the very court of which they are Judges."
Attacks like this were too just to be resisted, and two years
later the Governor, Lieutenant-Governor and Assistants were
replaced by the Judges of the Superior Court.

Constitutional provisions that the right of trial by jury shall
be preserved inviolate preclude, as a general rule, the
establishment of courts in which the judges can make a final
disposition of petty causes which turn on disputed facts. An
appeal from their decision must be allowed, and a new hearing
given on the merits in a court furnished with a jury. Under the
Constitution of the United States a trial by jury cannot be
claimed in civil cases at common law involving a demand of not
over twenty dollars, and in most of the older States it cannot be
in cases where it was not a matter of right prior to the adoption
of their Constitutions.

The verdict of a jury can only be reviewed on its merits by a
court of last resort where it was clearly and palpably against
the weight of evidence, and in order to do this the whole
evidence given in the trial court must be certified up.

Where a judgment has been rendered on a finding of facts made by
a judge in a cause of an equitable nature, this finding can, in
the courts of the United States and in many of the States, be
reversed on any point on appeal. For this purpose also all the
evidence that was before him, or all that is pertinent to
questions involved, must be reported to the court above.

Except so far as the right of trial by jury may require it, it is
a matter of legislative discretion whether to give any remedy in
a higher court for the errors of a lower one.

In some States an appeal is given from a judgment of an inferior
court even though rendered on the verdict of a jury, to a higher
one where another trial may be had before a judge of presumably
greater ability. In many States errors in law of petty courts
may be reviewed in higher trial courts. In a few of the larger
ones, as in the United States,[Footnote: See Chap. IX.] errors
in law of the higher trial courts, in a considerable class of
cases, are finally disposed of in an intermediate appellate
court, constituted to relieve the court of last resort from an
overweight of business.

* * * * *

Ordinarily it is the statutory right of a defeated litigant to
take an appeal, provided he can state any colorable ground of
exception. In some jurisdictions he is required to obtain the
approval of the trial court or else of some member of the
appellate court. There are many judges who think that such a
practice should be universally adopted. It would certainly tend
to relieve the dockets of appellate tribunals, and to bring
lawsuits to a speedier end. If one were sure that the judge to
whom application was made for an approval of the appeal would
always act intelligently and impartially, such a precaution
against useless litigation would be admirable. But the trial
judge is not in a position that naturally leads to an
unprejudiced judgment. The appeal is asked on account of
mistakes of his, and he will not be apt to think that he has made
any. The judge of the appellate court will be impartial and
unprejudiced, but he will have a very imperfect knowledge of the
case. He could only be asked to make a hasty examination of the
points involved, and it would be quite possible for him to reject
as frivolous grounds which, on a lengthy investigation after a
full argument, might have seemed to him substantial. In view of
these objections, and of the unequal attainments and experience
of the different judges of our courts, the bar are generally in
favor of making appeals a matter of right; and what the bar
favors in such a matter the legislature usually enacts.

* * * * *

The opinions and judgments of all American courts of last resort
are officially reported for publication. At first they were not
so reported. The earliest volume of American judicial decisions
(Kirby's) was published in 1789 as a private venture. A few
years later the States began to provide official reporters for
their highest courts and soon assumed the expense of publication.
There are now more than fifty current sets of federal and State
reports, the annual output being about four hundred volumes,
containing 25,000 cases. The mere indexing and digesting of
these reports for the use of the bench and bar has become a
science. While consulted by comparatively few who are not
connected with the legal profession, they constitute a set of
public records of the highest value to every student of history
and sociology.[Footnote: See "Two Centuries' Growth of American
Law," 6.]

It is the custom to prefix to the report of each case a head-note
stating briefly the points decided. Ordinarily this is the work
of the reporter. In a few States the judges are required to
prepare it; and to do so then naturally falls to the lot of that
one of them who wrote the opinion. Occasionally the head-note
contains statements not supported by the opinion. In such case
the opinion controls unless it is otherwise provided by statute.

It has not been the usual custom of English judges of courts of
last resort to write out their opinions. They have commonly
pronounced them orally and left it to the reporters to put them
in shape. The consequence has been that English reports have a
conversational tone, and are not free from useless repetition.
This has been not only a matter of tradition but of necessity.
The English judges have always been few in number. Their time
has been largely occupied in the trial of cases on the facts. It
is only in recent years that certain judges have been set apart
especially for appellate work.

American judges, on the other hand, are numerous. There is the
waste of energy in our judicial system which is the necessary
concomitant of the independent sphere belonging to each separate
State. Combination of all of them into one empire would make it
easy to reduce the judiciary to a tithe of its present numbers.
Their salaries are part of the price we pay--and can well afford
to pay--for our peculiar system of political government, under
which every State is an _imperium in imperio_.

The ever-increasing number of our States, each with a body of law
not exactly like that of any other, and each with a written
Constitution which is its supreme law, requires a court of last
resort in each. Experience tends to show that it ought not to be
composed of less than five. There should certainly be an uneven
number to facilitate decisions by a majority; and unless a
minority consists of as many as two, its dissent is apt to carry
little weight in public opinion.

In most of the States the court of last resort is not overworked.
In some the judges find time to do considerable circuit duty in
the trial of original causes. This keeps them in touch with the
daily life of the community, and is so far good. On the other
hand it disqualifies them from sitting on an appeal from their
own decisions, and so either reduces the number of the appellate
court occasionally below that which is normal and presumably
necessary, or involves calling in some one to act temporarily,
which imperils the continuity of thought and uniformity of
doctrine which should characterize every such tribunal. There is
also a certain natural bias, insensible perhaps to themselves,
which tends to make appellate courts stand by one of their
members whose rulings while holding a trial court are brought in
question. For these reasons it has now become common for the
States to confine their appellate judges exclusively to appellate
work. The time, therefore, which the English judge gives to
circuit duty the American judge can give to writing out his
opinions with all the art and care which he can command.

He speaks in most instances to a small audience--the bar alone.
But it is the bar of this year and the next year and the next
century. Every volume of reports is part of the history of
American jurisprudence and of American jurisprudence itself.
Occasionally some case arises which involves large political
questions, or one of especial local interest. The opinion is
then read more widely. The newspapers seize it: reviews take it
up. It is not always easy to anticipate what decision will
become a matter of public notoriety; what opinion will be quoted
as an authority in other States; and what drop unnoticed except
by the lawyers in the cause. A judge, therefore, though he have
no better motive than personal ambition, is apt to do his best in
every case to state the grounds of his conclusions clearly and in
order. A certain style of American judicial opinion has thus
grown up. It is dogmatic. It offers no apologies. There is
neither time nor need for them. The writer speaks "as one having
authority." He does not argue out conclusions previously settled
by former precedents, but contents himself with a reference to
the case in the reports in which the precedent is to be found.
He is as brief as he dares to be without risking obscurity.

It is undoubtedly true that many reported opinions are of a very
different type. Some of Marshall's assume a tone of apology; but
in his day it was needed. He struck at cherished rights of
States, upheld by their highest courts, and struck them down, at
a time when the country was unfamiliar with the conception of the
United States as a national force. Many of those of judges of
inferior ability do not rise above their source. They are
verbose, repetitious, slovenly, inaccurate in statement, loose in
form; perhaps sinking into a humor or sarcasm always out of place
in the reports;[Footnote: See, for instance, Mincey _v._
Bradburn, 103 Tennessee Reports, 407; Terry _v._ McDaniel,
_ibid_., 415; Hall-Moody Institute _v._ Copass, 108
_id_., 582.] possibly unfair in describing the claims that
are overruled. But, as a whole, Americans need not fear to
compare the reports of their courts with those of foreign
tribunals. No judicial opinions, viewed from the point of style
and argument, rank higher than some of those written by American
judges.

Those of appellate courts are generally composed and delivered by
a single one of their members, but he speaks not only for the
court but for every other member of it who does not expressly
dissent. Nevertheless, as their conclusions depend on one man
for their proper expression, the responsibility for the
particular manner in which the opinion may set them forth is
properly deemed in a peculiar sense to rest upon him.

Nor, if the opinion is afterwards relied on as establishing a
precedent, is the court bound by anything except the statement of
the conclusions necessary to support the judgment. If unsound
reasons for those conclusions are given, defective illustrations
used, or unguarded assertions made, it is chargeable with no
inconsistency in subsequently treating them as merely the
individual expressions of the judge who wrote the
opinion.[Footnote: Exchange Bank of St. Louis _v._ Rice, 107
Mass. Reports, 37, 41. This position is not, universally
accepted. See Merriman _v._ Social Manufacturing Co., 12
R. I. Reports, 175, 184.]

When Marshall became Chief Justice of the United States he
introduced the practice of writing all the opinions himself, and
with a few exceptions maintained it for ten years, and until, by
successive changes in the court, a majority were Republicans.
This, as has been well said, "seemed all of a sudden to give to
the judicial department a unity like that of the executive, to
concentrate the whole force of that department in its chief, and
to reduce the side justices to a sort of cabinet
advisers."[Footnote: Thayer, "John Marshall," 54.]

In some of the State Supreme Courts in early days, it was the
practice for the Chief Justice to deliver an opinion in every
case, but his associates frequently added concurring or
dissenting ones.

Of late years the business of appellate courts in the United
States and in most of the States is so considerable that it is
necessary to divide the labor, and the cases are generally
distributed equally for the preparation of opinions.

It is the prevailing practice to have the opinion, when drafted
by the judge to whom that duty is assigned, typewritten or
printed, and a copy sent to each of the other judges for their
consideration separately. At a subsequent conference each judge
is called upon by the Chief Justice to state whether he concurs
in it, and if alterations are proposed there is opportunity for
their discussion. This practice did not become general until the
latter part of the nineteenth century, when the typewriter had
come into common use. Prior to that time the draft opinion was
ordinarily first made known by its author to the other judges
either by reading it aloud at the final consultation or by
sending one manuscript copy around to each in succession for his
endorsement of approval or disapproval. In some courts it was
never thus submitted at all, and so they were occasionally
committed to positions which they had never intended to adopt and
afterwards found it necessary to repudiate.[Footnote: See for an
example of this Wilcox _v._ Heywood, 12 R. I. Reports, 196,
198.]

Our courts of last resort generally have before them a printed
statement of the doings in the lower court which they are asked
to review, and a printed argument from each party to the appeal.
Oral arguments are also usually heard, except in a few States
where the press of business renders it practically impossible
except in cases of special importance. Such a press occurs
mainly in the largest States, but exists also in some whose
Constitutions make it easy and over-cheap for every defeated
litigant to carry his case up to the highest court.

In the Supreme Court of Georgia no costs exceeding $10 can be
taxed against the unsuccessful party; and it has had eight
hundred cases in one year upon its docket. In most States he has
substantial costs to pay. These mainly are to meet the expense
of printing the record sent up from the court below. A single
case will sometimes fill a volume or even a set of volumes,
particularly in equity causes in the federal courts, in which all
the testimony is generally written out at length. The appellant
has to pay for the printing in the first instance, but
ordinarily, if he succeeds, the other party will be obliged to
reimburse him. The cost involved is occasionally several
thousand dollars.

The party taking the appeal must file a paper stating his grounds
for it separately, distinctly, clearly and concisely. There is a
temptation to include all that can be thought of, good, bad and
indifferent; and whether this is done or not will depend largely
on the opinion which the lawyers have of the ability of the
court.

In the smaller States the judges have time to enable all to study
each case with care. In the largest ones it is not uncommon to
assign every case on the docket, in advance of the argument, to a
particular judge. He is expected to give it special attention
with a view to reporting his conclusions upon it to the court,
and, should they be approved in consultation, to writing out its
opinion subsequently. The assignment for a term of court is not
infrequently made in the order in which the docket (or printed
list of cases to be heard) is made out, the chief justice taking
the first case, the senior associate justice the second, and so
on. At the next term the same practice will be pursued, except
that the justice next in seniority to the one who had the last
case under the previous assignments will now take the first case
on the new list, and the next junior justice the second.

Appellate courts generally sit not over four or five hours a day;
this time being either preceded or followed by a consultation.
They are seldom in session more than five days in the week. The
cases before them are not usually assigned for argument on
particular days. A list is made up of all which are ready to be
heard, numbered in order, the oldest first. They are then taken
up successively as reached, and the counsel concerned in each
must be ready at their peril. Often a limit is fixed by rule as
to the number of cases that can be called for argument in any one
day. In the Supreme Court of the United States this is the
practice, and the number is ten. In some of the States it rises
as high as twenty.

At the first consultation over a case which has been argued, the
Chief Justice (unless a special assignment has been previously
made of it to some particular member of the court) asks the
junior justice his opinion as to the proper disposition to be
made of it, and each justice in turn then gives his, in the
reverse order of seniority. If there is any serious disagreement
the matter is generally allowed to stand over for further
discussion later. At some convenient time after the views of the
various justices have been ascertained the cases are distributed
and, as a rule, equally for the purpose of preparing the
opinions. This distribution is sometimes made by the Chief
Justice and sometimes by agreement, or according to the
arrangement of the docket.

Until the opinion has been finally adopted it is not usual to
announce the decision. Not infrequently the ultimate decision is
made the other way, and a new opinion prepared by the same, or,
if he remains unconvinced that his first one was wrong, by
another judge. Still more often the draft opinion is altered in
material points to meet criticisms and avoid dissent.

Dissenting opinions are comparatively rare, particularly in
courts where there is a Chief Justice with the qualities of a
leader; that is, with ability, learning and tact, each in full
measure.[Footnote: Perhaps tact counts the most, for the Chief
Justice has the advantage of hearing the opinions of all his
associates at all consultations before he gives his own. Senator
Hoar makes a pungent comment on Chief Justice Shaw's want of it,
in his Autobiography, II, 413.] Every instance of dissent has a
certain tendency to weaken the authority of the decision and even
of the court. Law should be certain, and the community in which
those charged with its judicial administration differ
irreconcilably as to what its rules really are, as applied to the
transaction of the daily business of life, will have some cause
to think that either their laws or their courts are defective and
inadequate. For these reasons judges of appellate courts often
concur in opinions, of the soundness of which they are only
convinced because of the respect they entertain for the good
judgment of their associates. They are willing to distrust
themselves rather than them.

Not seldom, however, dissent and the preparation of a dissenting
opinion has in the course of time, aided, perhaps, by some change
of membership, converted the court and led to overruling a
position incautiously taken which was inconsistent with settled
law.[Footnote: A striking instance of this is the case of
Sanderson _v._ Pennsylvania Coal Co., 86 Pennsylvania State
Reports, 401; 94 _id_., 302; 102 _id_., 370; 113
_id_., 126; 6 Atlantic Reporter, 453.]

More than eighty out of every hundred of the opinions delivered
in the courts of last resort of each State of the United States,
excepting one (New Jersey), and contained in the last volume of
the reports of each published prior to June, 1904, were
unanimous. In New Jersey seventy-three out of every hundred
were. In two States, Maryland and Vermont, there was dissent in
but two out of every hundred cases, and in all the States taken
together, out of nearly 5,000 cases decided a dissent is stated
in 284 only. This made the proportion of unanimous decisions of
State courts, in the country at large, to those in which there
was dissent nineteen to one.[Footnote: _Law Notes_ for June,
1904, p. 285.]

A dissenting judge sometimes files an opinion which is then
printed in full in the reports. More often the fact of his
dissent is simply noted. In cases involving constitutional
questions it is rare for a dissenting judge not to state his
reasons. The importance of the subject justifies if it does not
demand it. As Mr. Justice Story once observed, "Upon
constitutional questions the public have a right to know the
opinion of every judge who dissents from the opinion of the
court, and the reasons of his dissent."[Footnote: Briscoe
_v._ Bank of Kentucky, 11 Peters' Reports, 257, 349.]

The official reports of the courts have some of the faults of
officialism. They often do not appear until long after the
decisions which they chronicle have been made and their general
make-up is sometimes unworkmanlike and unscientific. It requires
rare gifts to make a good reporter of judicial opinions. He must
have the art of clear and concise statement; the power to select
what is material and drop the rest; and the faculty of close
analysis of abstract reasoning.[Footnote: Four of the reporters
of the Supreme Judicial Court of Massachusetts have been
appointed justices of that court, largely in consequence of their
good work in reporting. A good reporter always has the making of
a good judge.] Many of our reporters also are practicing lawyers
of no special training for the work, and who give to it but a
portion of the year.

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