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Wednesday, July 05, 2006

Why shouldn't SCOTUS be in the error correction business?

With thanks to the PrawfBlawg team for having me back for another guest stint, I want to expand a bit on some legal process ruminating I started on my home blog.   Specifically, in this post, I concurred with observations by Orin Kerr here, and the folks at De Novo here and here that the Roberts Court assumed more of an "error-correction" role in its criminal justice docket this past Term.   Now I want to ask whether there are any strong arguments against the Supreme Court actively embracing an "error-correction" role.

For a bit of background, consider the Court's summary reversals in Salinas (details here) and Smith (details here) and its notable GVR in Youngblood (details here).  Beyond creating a bit more work for the Justices, I see no obvious downside to these error-correction efforts (although one might debate whether summary reversals or GVRs or other error-correction mechanisms ought to be preferred).  The upside of the Supreme Court embracing an error-correction role is clear: not only are errors corrected, but lower courts – particularly state supreme courts and federal circuit courts  – receive the important message that they should strive hard to get it right even in little cases.

Of course, identifying and correcting errors found among thousands of cert petitions is time-consuming.  But the Court's ever shrinking docket does not present any overwhelming number of argued cases.  And maybe a little more time looking to correct errors would mean a little less time writing long opinions in argued cases, which could also contribute in positive ways to the development of the law.

Thoughts?  Counter-arguments?

Posted by Douglas A. Berman on July 5, 2006 at 12:59 PM in Constitutional thoughts | Permalink


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Dave, I am not quite sure I understand why I ought to have the burden of showing that it would be "cost effective" for SCOTUS to correct errors. I am also not certain exactly why you think it is not within the core competency of the Court to identify and correct errors committed by lower courts.

Let's look at "cost effectiveness" first. Many aspects of our justice system are not "cost effective" --- jury trials and habeas corpus are just two examples that leap to mind. But the Framers enshrined these "inefficient" procedures in the Constitution, and most everyone would acknowledge that broader notions of justice should not always be compromised in the name of cost effectiveness. (Relatedly, appeals in general are arguably not cost-effective, especially given that 75% fail. Moreover, to have a truly efficient Supreme Court, perhaps the Court ought simply to issue declaratory judgments so it does not have to await an actual case or controversy to resolve an important issue of "national legal policy.")

As for competencies, many of your points assume that a losing party has already received prior layers of review. But that's not always the case, as I suggested before. Federal circuit courts can make lots errors in the first instance (e.g., by wrongfully reversing a correct decision below), and the losing party now gets no review absent a "big" issue or a circuit split. In such cases, the Supreme Court is the only competent body to correct the circuit error (especially if the error involves a constitutional issue). Moreover, I believe setting forth a little bit of law during a common-law process of error correction is much more likely to strengthen the Court's competent contribution to "national legal policy" than a commitment to just weighing in on every hot-button legal policy debate.

Posted by: Doug B. | Jul 6, 2006 1:40:53 AM

Well, by "national legal policy," I simply mean "the things the SC does on a day to day basis." Call it what you will. I use it to mean, essentially, resolving important and undecided questions of federal law. Given that those decisions affect people's substantive rights, I think they deserve to be called policy judgments, even if they are in fact "legal."

But that's beside the point. Your argument boils down to this: error exists in the lower federal courts. That is of course true. But you havern't shown why it is cost effective to put the SC to work on fixing those errors. Nor whether the number of errors justifies yet ANOTHER layer of redundancy in a system with plenty of it. Sure, there will always be error. But that does not mean we should do anything and everything to bring it down to zero. I think, given the SC's particular competencies, it would be quite a bad idea to use up much of the SC's time on it. And given that it can only ever be a meaningless drop in the bucket, it would be unfair to dole the benefit out in essentially random fashion.

Posted by: Dave | Jul 5, 2006 10:59:12 PM

Dave, I suspect that many legislators (and fans of the "umpire school" of judging) would say it should be the legisltures' job --- and not the Supreme Court's job --- to craft national legal policy.

Also, why couldn't the Court --- with nine Justices and three dozen clerks --- correct hundreds of errors each Term? (After all, the First Circuit deals with many hundreds of appeals each year with only six active judges.)

Also, keep in mind that many federal litigants get only one bite at an appellate apple, and busy circuit courts can make their own errors in addition to failing to spot errors below. Likewise, many state litigants may can have serious federal errors overlooked by overworked state appellate courts.

This is not to say that I think error correction is an efficient process, but fixing errors that impact federal rights and interests seems like a kind of (inefficient) justice that should be a part of the Supreme Court's business.

Posted by: Doug B. | Jul 5, 2006 9:41:30 PM

Doug B.,

No, I'm not saying that error doesn't exist. I'm saying that (a) it is relatively minimal, and (b) the marginal cost of identifying and correcting it is relatively high. Precisely BECAUSE errors are few and far between, the marginal cost of identifying them is high from the perspective of the Supreme Court. To put it in practical terms: instead of reviewing cert petitions for novel legal questions, the clerks also have to review them for blatant errors. That is a different sort of search, and one that will necessarily detract from the SC's real business: crafting national legal policy.

Moreover, token error correction sends no kind of message to the lower courts. Federal judges aren't stupid. They know the SC can at most take a few error correction cases per year. The ones that are inclined to slack off will continue to do so. And thus the expenditure of SC time will be utterly worthless, except to the individual litigants. As I argued before, it is fundamentally unfair to give a handpicked two or three a fifth or sixth bite at the apple when thousands of others only get four or so. That's not justice: that's a random benefit. The SC would do much better to take a few more cases in underdeveloped areas of federal statutory law than waste its energies on ineffectual error correction.

Posted by: Dave | Jul 5, 2006 8:39:33 PM

Some "errors" are not necessarily "errors" in any sort of undisputed sense. Consider all the many types of civil cases where one party has to prove something by a preponderance of the evidence. Sure, the losing party will be upset, but in many cases where the evidence is closely balanced, no one can really say that a judgment is certainly correct or erroneous. What purpose would it serve to have the Supreme Court take up several hundred cases a year merely to determine, in rulings that would necessarily apply only in an individual case, whether the evidence was "really" 51% in favor of one side or the other?

Maybe a prudential Thayerian rule would be appropriate: The Supreme Court could engage in error-correction, but only where the error was sufficiently blatant. Otherwise, the Supreme Court would be expending huge amounts of time and energy merely to give particular litigants a third bite at the apple.

Posted by: Stuart Buck | Jul 5, 2006 6:40:31 PM

Above the marble columns of the U.S. Supreme Court building it says "Equal Justice Under Law". It seems to me that that isn't true when the Court does not review a case involving an error -- at least a significant error.

Posted by: Dennis Lee Burman | Jul 5, 2006 5:47:28 PM

Dave, I surmise you are saying that nearly all errors are already corrected. If that's true, the Supreme Court won't have a lot more work if it takes up error correction.

Moreover, a greater commitment to error correction would work against the unfairness you cite in your last sentence. Right now, only a very lucky few private entities (and, somewhat more often, the government) get the benefit of full review by the Supreme Court. Having the Court more concerned with error correction would level the playing field, I think.

Posted by: Doug B. | Jul 5, 2006 5:29:56 PM

I would think the argument against it is that there are so many levels of redundancy already, it's just not worth it. Adversaries check each other, magistrates check adversaries, district judges check magistrates, appellate judges check the district judges, and the public and the academy to some extent check the appellate judges (not directly, but through commentary). I've seen no evidence on an epidemic of error in the federal courts, and I think these layers are the reason. Add to the limited utility of error correction the unfairness of giving a few litigants access to a higher tribunal when everyone else gets stuck with less.

Posted by: Dave | Jul 5, 2006 5:16:19 PM

Why not any and all errors, Stuart, or at least those that have a significant impact on the rulings and/or outcome below? Your question suggests you have a theory about why all error are not equal, but they likely all feel the same to the losing party.

Keep in mind that many smaller or less consequential errors will not generate a cert petition, so the costs and complications of seeking cert already screen cases to some extent.

Perhaps you can say more about why you think the type of error matters.

Posted by: Doug B. | Jul 5, 2006 4:58:10 PM

Error correction in what sense? Blatant legal errors, such as applying the wrong doctrine or ignoring prior Supreme Court precedent? Legal errors of a more subtle sort (i.e., giving too much weight to a particular factor)? Factual disagreements?

Posted by: Stuart Buck | Jul 5, 2006 4:18:29 PM

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