Making Our Democracy Work (23 page)

B
Y “SPECIALIZATION,”
I refer to the different judicial tasks that ordinary federal courts perform at different levels of the judicial system. Of those ordinary courts, trial courts are at the bottom, appeals courts in the middle, and the Supreme Court on top. This hierarchical organization reflects the fact that the “higher courts” have the last word in respect to the meaning of a text. But to consider hierarchy alone is to fail to consider the specialized roles of these different courts.

Numbers may be helpful. Federal trial courts are organized nationally into ninety-four geographic districts. The annual number of cases filed in all federal trial courts (not including bankruptcies) amounts to about 340,000 per year (less than 2 percent of the number filed in state courts) and constitutes the vast bulk of the work of the federal court system. Federal courts of appeals are organized into twelve geographic circuits throughout the nation plus the Court of Appeals for the Federal Circuit. Litigants who lose in a trial court normally have the right to file an appeal, and each year they file about sixty thousand appeals, which appellate courts consider on the merits. The Supreme Court receives about eight thousand requests for full consideration each year. The Court grants about 1 percent of the requests filed and thus decides about eighty cases annually.
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The courts at each of three different levels carry out different tasks. Trial courts—the front line—perform the great majority of all judicial work. They respond to a universal need present in every society, that for some method for resolving disputes among individuals. Trial judges consequently specialize by focusing on individual disputes. When the parties bring a dispute to court, the trial judge encourages the parties to settle it. If settlement fails, the trial judge manages the resulting litigation, including discovery procedures, thereby permitting each party to obtain information from the other. The judge supervises the presentation of evidence at trial and instructs the jury about the law. The jury (or, if there is no jury, the judge) will find the facts. In doing so, the judge or jury may have to make credibility judgments, that is, decide whom to believe when witnesses give conflicting testimony. And the judge ultimately determines whether a verdict for one or the other party is consistent with the law. In carrying out these tasks, the judge may well meet the parties face-to-face and will likely learn how the law will affect the parties and perhaps other interested individuals as well. At a minimum, the trial judge comes to understand the underlying circumstances of a particular dispute.

Then comes the job of the appellate judge. The losing party in the trial court can appeal, claiming that the trial judge made a mistake of law or found facts contrary to the evidence. When considering appeals, appellate judges have two different roles. First, they engage in “error
correction.” The appellant may argue that the trial judge mistakenly applied well-established law, say when the trial judge admitted or refused to admit certain testimony or allowed the jury to reach a factual conclusion that, in the appellant’s view, the evidence did not support. To decide whether the appellant is right, appellate judges may have to review the record, examining the circumstances of an individual trial. They may have to look at the evidence presented to decide whether it warranted the instructions the trial judge gave or whether it provided adequate support for the factual conclusions the jury reached.

Second, appellate judges engage in textual interpretation. They examine a phrase in a statute or in the Constitution in order to decide what it means or how it applies.

A party who loses an appeal may ask the Supreme Court to conduct further review. As
Appendix B
explains, the Supreme Court engages almost exclusively in textual interpretation. The Court’s role differs from that of federal appeals courts in that
constitutional
interpretation makes up a considerably larger portion of its interpretive diet.

Numerous legal rules (often originating in customary practice and now more often embodied in specific written rules or case law precedent) help to make the court system function more effectively by recognizing the specialized nature of the tasks in which different courts engage. Rules governing appellate court review, for example, recognize the trial court’s fact-finding role by severely limiting an appellate court’s consideration of factual matters. The trial jury or, if there is not a jury, the judge makes most factual determinations. Normally, a court of appeals may reverse a trial court’s finding of fact only if the appellate court concludes that the jury made a finding no reasonable person could make or if the trial judge made a finding that is not simply wrong but
clearly
wrong. Appellate courts also recognize the trial judge’s specialized role by granting broad leeway when reviewing a trial court decision related to case or trial management, such as a discovery ruling or a decision about what witnesses to allow and what they may be asked.
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The Supreme Court, working at an even greater distance from the legal front line, also follows rules and practices that increase its effectiveness
by recognizing functional specialization. Those rules and practices tend to prevent the Court from engaging in case management or second-guessing related trial court decisions. They also leave to appellate courts the work for which those courts are better suited.

For example, the Court follows a special rule in respect to matters of fact. If two lower courts—say, both the trial court and the reviewing appellate court—reach the same factual conclusion, the Supreme Court will take that fact as established and refuse to examine the extent to which the evidence in the record supports the fact. The Court also will not normally review a factual determination made by an administrative agency, recognizing that appellate courts (which review most agency decision making) are better suited to undertake this task.
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These rules and practices reflect a practical need. The Supreme Court justices rarely delegate work to each other. Each listens to the others but also makes up his or her own mind after separately reviewing the underlying law and relevant facts. This practice often results in a better decision by bringing different points of view to bear on the same problem. In the context of fact-finding, however, this practice would be counterproductive. Nine members cannot easily comb lengthy records in order to make factual determinations. Hence fact-finding and record-based review of fact-finding are better delegated to lower courts.

The Supreme Court’s practice of taking most cases primarily for the purpose of resolving conflicts among the lower courts also serves practical ends related to specialization. Lower-court judges are not more likely to commit errors than are Supreme Court justices. Rather, as Justice Robert H. Jackson pointed out years ago, the Supreme Court is not “final” because it is “infallible”; rather, it is “infallible” only because it is “final,” that is, it has the last word. The Court is right by definition. Even if the Court does not provide a “better” decision, a single Supreme Court provides a single interpretation of the law. And national uniformity has obvious advantages.
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Moreover, Court review brings to bear the different perspectives of different justices. These differences are likely helpful when the Court decides a difficult case where lower courts have reached different conclusions. But they are not always helpful when the Court reviews law that is already uniform. Thus, the Court tends to reserve its time and
effort for those cases where existing divisions among the lower courts make a single final Supreme Court decision necessary.

T
HE FOLLOWING TWO
examples illustrate the need for the Court to place considerable weight on specialization when it reviews lower-court fact-based or case-management decision making.

Horne v. Flores
helps illustrate the difficulties facing the Supreme Court when it undertakes a task more easily performed in a court of appeals, namely, reviewing a lengthy fact-specific record to determine whether the lower courts properly applied a set of complicated legal standards.
Horne
involved the application of a federal statute requiring states to take “appropriate action” to ensure that their school systems do not discriminate against students who do not speak English. As interpreted, the statute requires the state to have some system for teaching English to non-English-speaking students, to see that the program has reasonably adequate resources, and to see that program and resources together produce at least minimally sufficient results. In a word, the statute sets a minimal floor with respect to the existence and effectiveness of a state program.
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In 1992, a group of parents whose children spoke only Spanish brought a lawsuit in federal court in Arizona. The parents claimed that Arizona’s English-teaching programs were not “appropriate” because they fell below the federally required floor. After months of proceedings and a lengthy trial, the trial judge held that the parents were right. Arizona did have a plan for programs to help non-English-speaking students, which cost approximately $600 per student. But Arizona provided only $150 per student in funding. Consequently, the court ordered the state to reconsider its programs and come up with funding appropriations that had at least a “reasonable relation” to its programs’ needs.
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During the next several years, Arizona took steps to improve its system.
The legislature provided additional funding, and the state enacted a new statute that it hoped would satisfy the court. In light of these efforts, the state asked the district court to cancel its order. New district court proceedings followed, then an appeal, a full evidentiary hearing in the district court, and another appeal. Eventually, the district court wrote an opinion that set forth numerous factual findings and held that the new state law and new programs reflected progress but remained inadequate. The court found the state had not yet complied with the original order and funding was still well below what the programs themselves considered necessary. State officials appealed. The court of appeals reviewed the evidentiary record, thousands of pages, and wrote a detailed, nearly forty-page opinion affirming the district court’s decision. The state then successfully petitioned the Supreme Court to hear the case.
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Horne v. Flores
raised questions about the application of agreed-upon statutory standards to a large number of circumstance-specific findings of fact. To what extent would the state’s new approach to teaching English, called English immersion, likely produce better results at lower cost? To what extent would increased state budget funds likely reach those students who needed to learn English? To what extent had reorganization of the local school district helped? To what extent would a new federal law, the No Child Left Behind Act, which required states to set English-language-learning goals and report results, make a difference? To what extent should the district court, in all such matters, give leeway to the state’s own efforts to answer these questions? To what extent should the need for a new budget appropriation—necessitating state legislative action—require the district court to set aside its earlier order so that it would avoid conflict between a federal court and an elected state legislature?

The difficulty the case posed for the Court lay in the fact that no one doubted the relevance of all these questions. The case did not raise a straightforward question about how to interpret a statute. Rather, it raised questions of degree, which were best determined in light of local facts and circumstances. The question before the Court was whether the district court had paid the right
degree
of attention to the state and to the legislature when it considered the matters I have just described.
To resolve these questions, the Court had to read the lengthy fact-based record and then make judgments on the basis of that record, rather as a court of appeals might do.

Ultimately, five members of the Court concluded that the district court had not given sufficient weight to the new federal No Child Left Behind Act. Nor had it given sufficient negative weight to the undesirable institutional aspects of a court’s requiring a state legislature to appropriate new funds. The Court sent the case back to the district court so that it could consider the matter again, in light of the Court’s concerns. Four dissenting members of the Court (of which I was one) concluded that the court of appeals was right in finding that the district court had treated all these matters appropriately.
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The case required the Court to do what an appeals court does best—review a lengthy record in order to decide whether a district court has properly applied the relevant legal standards. And what did the Supreme Court accomplish by conducting this review? The circumstance-specific nature of the decision sapped its power to use the case to guide other courts. The Court’s review might not even have changed the result in the case before it, for the Court’s decision permitted the district court, after further review, to reach the same conclusion. In any event, the district court itself had written that the state’s new programs were helpful. It expected the state to take further steps that would permit it to set aside the court order in the near future regardless.
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How did Supreme Court review hurt? Further proceedings, of course, cost the parties considerable money. Further proceedings also consumed state and local officials’ time, leading to further delay in fulfilling the statutory objective, namely, teaching Spanish-speaking children to work in English. The majority believed the decision would lead courts in the direction of greater respect for a state’s management of its own educational programs. Yet circumstance-specific opinions, including this one, may fail to guide lower courts even in this respect, especially when the Court is closely divided as to the extent to which the record supports particular circumstance-specific findings.