Who Oversees the Overseers? An Explosive Law Review Article Points Up the Difficulty in Keeping Appellate Courts Honest

In a very unusual recent law review essay, University of Chicago (emeritus) law Professor Al Alschuler seeks to expose what he sees as judicial wrongdoing by Frank Easterbrook, a prominent judge on the United States Court of Appeals for the Seventh Circuit (who came to the bench after a prolific career as a law professor and legal scholar, also at the University of Chicago.) Professor Alschuler writes about Judge Easterbrook not as a disinterested academic examining the jurisprudence of a very important jurist (and former faculty colleague), but as a lawyer who unsuccessfully represented former Illinois Governor George Ryan in federal criminal matters in the Seventh Circuit. According to Professor Alschuler, the Seventh Circuit, in various opinions all of which were authored by Judge Easterbrook, “made six rulings in favor of the government [that] the government had not sought. All of these rulings were questionable or worse, and the court afforded Ryan no opportunity to address most of them until after Judge Easterbrook’s opinions had been published.”

In additions, the essay seeks to document:

eight falsehoods told by Judge Easterbrook in written opinions and statements from the bench.. . . By falsehoods, I do not mean minor misunderstandings or misrepresentations; I mean whoppers. Anyone who checks can confirm that these statements were false. . . .These falsehoods included statements that the trial court gave instructions it did not give, that both the defendant and the government made arguments they did not make, that litigants in the Supreme Court made arguments they did not make, that the defendant and the government waived or forfeited arguments they did not waive or forfeit, that the Supreme Court said things it did not say, and that several of the defendant’s sentences had expired when they had not expired.

In my column today, I do not propose to assess the validity of Professor Alschuler’s allegations—they are complex, the essay is long, and Verdict is not the easiest venue in which to engage in such an assessment. Instead, today I seek to explain why additional attention needs to be paid to the integrity and validity of decisions by United States Courts of Appeals as a general matter. Professor Alschuler identifies his chief goals in writing the essay as: (1) a pardon for his client, George Ryan; (2) more discipline and honesty from Judge Easterbrook going forward; (3) better oversight of Judge Easterbrook by his Seventh Circuit colleagues; and (4) educating the public that pays Judge Easterbrook’s salary about “the kind of [judicial] service he provides in return.” I would add a fifth very important outcome that I hope essays like Alschuler’s might generate: more attention by legal scholars to the work-product of intermediate courts of appeals.

In most areas of law—including my own primary field of constitutional law—the most meaningful venue where legal questions are resolved and legal correctness is assured is the court of appeals. Trial courts perform very important fact-finding functions (as to which higher courts usually pay deference), but as to questions of law or mixed questions of law and fact, trial courts often (and rightly, given their heavy case load and limited resources) view the answers they provide as placeholders. In America, courts of appeals—who enjoy more resources, including more time—are supposed to be the safeguards to make sure that legal principles get properly applied so that litigants do not suffer the consequences of mistaken or intentional misapplication of legal rules. They watch over the trial courts to correct mistakes of law and enforce impartiality.

And yet who watches the courts of appeals themselves to make sure they don’t make mistakes or manipulate outcomes? One possibility is the appellate judges themselves. After all, federal appellate courts (and many state appellate courts too) use three-judge panels, rather than individual judges, to hear appeals, largely because three heads are thought to be better (and fairer) than one.

Having three separate judges (and their staffs) look at each case does provide some safeguard, but perhaps less than outsiders would expect. In many courts, one of the three panel members is assigned primary responsibility (perhaps even before oral arguments) for working up (that is, summarizing the parties’ contentions, the applicable law, and the proper resolution) of each case and distributing that work-up to the other two chambers, and the judge assigned primary responsibility is often given a fair degree of deference by the other judges on the panel. That deference increases once a judge is assigned the task of writing an opinion and then circulates a draft; because an appellate judge must join together with colleagues to decide hundreds of cases each year, s/he often ends up being willing to sign onto opinions that are quite different—as to the precise legal reasoning used to get to a result—from the opinions s/he would have written as an individual. Such is the nature of collaborative and collegial multi-member courts where each judge puts the lion’s share of time into the opinions s/he authors.

What about the Supreme Court? Isn’t that the place where appellate court mistakes or manipulations can and should get corrected? Not so much. As readers familiar with the U.S. Supreme Court—and most state supreme courts are similar in this respect—know, the Court does not sit to correct legal errors or misapplications; its primary job is to answer (or sometimes revisit) important legal questions that have not been definitively resolved and that may be generating different approaches by different lower courts. When the Court decides which 70 or so of the more than 7,000 petitions for review to accept, it is looking for so-called “circuit splits” (where different lower courts have answered the same legal question differently) and important recurring (or occasionally sui generis but momentous) legal questions that are in need of the Court’s clarification or attention. (Similarly, courts of appeals, when deciding which cases to review as a whole—en banc—rather than just with three judges, look for recurring and important legal questions, not so much misapplications or manipulations of settled law by three-judge panels.)

Indeed, ironically enough, when a court of appeals (either intentionally or mistakenly) ignores well-settled legal principles (as Professor Alschuler alleges the Seventh Circuit and Judge Easterbrook have done), the persuasiveness with which the legal error (or manipulation) can be demonstrated actually cuts against—rather than in favor of—Supreme Court review, because if the mistake or manipulation can be demonstrated overwhelmingly, the proper legal principles must themselves already be clear such that they don’t need elucidation from the Court to avoid widespread confusion or differential application. (Very rarely the Court will summarily reverse a lower court for making a bonehead or willful mistake on a clear legal question, but these cases—unlike Governor Ryan’s—usually aren’t particularly complex or time-consuming to untangle.)

If not courts of appeals themselves or the Supreme Court, what about the bar as a good watchdog? If lawyers like Mr. Alschuler write detailed analyses of how a court of appeals panel failed to properly do its job, won’t that shed light on injustice? Perhaps, but as Professor Alschuler himself points out, lawyers who are unsuccessful in court and who complain about it are viewed as sore losers and lack credibility. I have made the same point in another on-line essay, where I wrote: “[W]hen lawyers/clients claim they are victims of judicial error, they are not taken seriously because of their self-interest.” In fact, I think Professor Alshuler’s essay about Judge Easterbrook is getting serious attention because he was both the lawyer of record and he has been a well-known and highly respected academic, most of whose writing during his career has not been on behalf of any client or in the context of any contested litigation. (The publicity of his essay may also be enhanced by Judge Easterbrook’s stature and the fact that he and Judge Easterbrook were U of C faculty colleagues.)

If not judges, justices, or lawyers, then who? A natural possibility would be law professors. But very few law professors read and write about lower court decisions, except insofar as these decisions may generate a “split” that might warrant Supreme Court review. In his recent high-profile book Divergent Paths, Judge Richard Posner (coincidentally another member of the Seventh Circuit and University of Chicago professor), lamented this tendency of law professors to focus unduly on the Supreme Court. He (rightly) urges legal scholars to “deemphasize the study of Supreme Court decisions relative to decisions of the lower federal courts.”

I think this is spot on: putting aside the merits of Professor Alschuler’s assertions, I can’t tell you how many times I have read Court of Appeals decisions whose results rely on mischaracterizations of past precedent or the factual record. Yet unless you read the earlier rulings—or delve into the records—the mistakes (or worse) are not visible. But I don’t expect most law professors to heed Judge Posner’s good advice here—court of appeals jurisprudence simply isn’t sexy or glamorous enough, and law professors view themselves as watchdogs (if at all) not for individual cases, but only for larger jurisprudential developments.

Who’s left? Perhaps law students. I would encourage law reviews and students who are writing Notes and Comments to focus more attention on trends and decisionmaking in the courts of appeals, especially in online commentary that can be more promptly reactive to recent rulings. But given that law students are themselves newcomers to the profession and may not be sufficiently experienced to appreciate poor judicial craft, I’m not sure that’s a very satisfying answer to a real problem.