Topic: How the Court System Works and What an Appellate Judge Does
Senator: Sessions
Date: SEPTEMBER 13, 2005
Contents
SESSIONS: Judge Roberts, I tried a lot of cases in federal district court. I have written appeals to the federal appellate courts and argued a few times in the Court of Appeals.
I'd like for you to help explain to us how this court system works and what an appellate judge does. I mean, appellate judges don't go about to set policy in America, they don't go out to supervise and superintend the legislative and executive branches; they decide cases that come before them.
SESSIONS: So isn't it true that, normally, a case would be initiated in a federal district court or state trial court, and a trial would be held -- often with a jury -- and a judgment is rendered?
ROBERTS: That's what most people, most of us, think of when we think of going to court. You're there, you bring in the witnesses, they testify, they're cross-examined by the other side. There is one judge supervising the trial. If it's a jury case, the jury is there.
That's where most of the fact-finding takes place. People have different versions of events. You know, who was there? What did they do? And people tell different stories. And that's where you try to sort that out, either before the jury or the single judge.
SESSIONS: And a judge has to rule. He has to rule on evidentiary matters, on legal matters. Sometimes a judge is in the midst of trial and maybe he makes an error, maybe he doesn't make an error.
But every word of that trial is put down. It's recorded. And so, after the trial, if the losing party is unhappy, they can take an appeal, and when they do that it goes to the federal Court of Appeals for that circuit, and they point out to the Court of Appeals where they think the judge made an error. And they say, "This was wrong and we want a new trial judge or remittiture (ph) or some other remedy."
Isn't that what happens when...
ROBERTS: That's right. And the big difference when you get up to the Court of Appeals is that the facts are not really in play anymore. Somebody's been determined -- they think you are guilty or they buy your versions of the events.
The Court of Appeals usually just looks at the legal issues. Somebody says, "The judge made a mistake. He shouldn't have let that witness testify," or, "He should have recognized that the police had no authority to conduct that search in a criminal case." And that's appealed to the Court of Appeals where, in the federal system, there are three judges and they're just looking at that legal question.
And they just go back and look at the law, the precedents and determine whether or not the law was correctly applied in the trial court or if a mistake had been made and they need to do it over again.
SESSIONS: And if they appeal, the lawyers write sometimes beautiful, carefully written briefs that point out the reasons why they think an error may or may not have occurred.
Isn't that correct?
ROBERTS: As a Court of Appeals judge, that's exactly the kind of brief you are looking for, and every now and then you get one.
(LAUGHTER)
SESSIONS: And sometimes when you read the first brief you are persuaded and when you read the second brief you think maybe you weren't so -- maybe it wasn't as clear as you thought it was when you read the first one.
ROBERTS: Not just sometimes, Senator. Quite often that's my reaction.
ROBERTS: That's part of the adversary system. And you need to have lawyers doing a good job presenting the best arguments on either side, so you can feel comfortable that you're making as good a decision as you can.
SESSIONS: And so the lawyers in the case and the clients and the parties want a judge who will carefully read those briefs and be fair and careful in analyzing whether or not they've got a fair trial to ensure justice took place.
ROBERTS: That's what I was always looking for when I was a lawyer, Senator, yes.
SESSIONS: Mr. Chairman, I see the clock is going around in circles down here, I think. What do you want to do about time?
SPECTER: Well, they haven't started the vote. And we all know that that's not totally predictable, even when they say 4:30. Would you care to continue until the vote starts?
SESSIONS: I would be pleased, if the chairman would. So do you know what my time is, now?
SPECTER: You can run the red to -- well, it just went off.
SESSIONS: This is like a football referee -- put so much time back on the clock. It says a minute left.
(LAUGHTER)
SPECTER: You can run the red until seven minutes and 30 seconds.
SESSIONS: All right. Very good.
(LAUGHTER)
Who am I to disagree with our chairman?
SPECTER: Senator Sessions, if you would...
SESSIONS: I'll have 15 minutes after this?
SPECTER: You have 15 minutes left, yes. Start the clock back at 15 minutes.
SESSIONS: OK. Good.
(CROSSTALK)
SESSIONS: Thank you. A doctor down here is good at mathematics.
(LAUGHTER)
Businessman, too.
So, now, but it's even more complicated than that in doing justice. And on the Supreme Court, if a case comes up to you, you will probably have briefs from both parties, you will receive the transcript of the trial that the issue arises from and you'll study that. And you have several law clerks who will help you study that. Every one of the nine Supreme Court justices are also studying this same record and all these briefs. Isn't it true that friends of the court can submit briefs?
ROBERTS: Well, at the Supreme Court level, that's very common. In some cases, there are quite literally hundreds of so-called friends of the court or amicus briefs. Different organizations that are interested in the particular ruling and have a particular perspective. A few of them are even helpful.
SESSIONS: So you review that, and then you frequently set the case, or normally set the case for oral argument.
ROBERTS: If the Supreme Court decides to -- this is, of course, a very big part of their function. They get some 10,000 petitions every year of people saying, "I want you to hear my case." You know, all lawyers say they're going to take it all the way to the Supreme Court; 10,000 people try to do that every year.
These days the court hears about 80 of those, 80 of those 10,000. And the selection of which 80 to take is obviously a big part of the court's function. But once they've selected those 80 cases, then they go in and have new briefs on the merits and all these amicus briefs are filed from different organizations presenting their arguments or their particular perspective. And then it's set for argument.
SESSIONS: So the lawyers from both sides then appear before the court, over in the Supreme Court building, and they answer questions and make their presentations as to why they think the court should rule the way they would like it to?
ROBERTS: They usually get an hour for the whole case.
So each side gets a half hour and that half hour is taken up almost entirely by the justices' questions.
I went back once and counted the questions during my half hour and there were over 100 questions. Obviously, some of them were rapid-fire questions. If you follow the court, you could probably guess who was asking those. And others are more elaborate questions but more than 100 in a half hour.
So the job of the lawyer there is to be totally prepared to answer all of those questions. And, of course, some of them are going to lead into traps. And you have to be careful about that. Others are going to be the very difficult questions that the court is eventually going to base its decision on. But it's a very both exhilarating and demanding process to go through an oral argument before the Supreme Court.
SESSIONS: And I think there's little doubt that you are the best practitioner of it in the country. But with regard to that you then finish, and do the judges then meet in conference to discuss the case?
ROBERTS: They do. The justices, each of whom has prepared the case by not only reading all these briefs and attending the argument, talking it over with their law clerks, but also reading back over the cases, the precedents that the lawyers have been arguing about -- they go back and look at those.
And then just the justices in the conference room -- no clerks, no staff, just the nine justices -- sit in the conference room and talk about it, thrash out the case.
Eventually, they get to a point where they take a vote on what they think the disposition should be. The decision should either be affirmed or reversed or sometimes something else in between -- half affirmed, half reversed, sent back, whatever.
And then the opinion is assigned, and that's still very much part of the process -- the writing of the opinion -- because, quite often, or maybe not quite often, but often enough, the justices find out that, as they try to write a particular opinion, different problems come up; it's not writing as they thought it would.
And sometimes they have to go back and revisit the case because the judge -- the justice -- assigned the opinion decides that it should come out the other way or there should be a different reason, a different basis for the decision.
And then, once the justice who is writing is comfortable with the opinion, they send it around to all of the other chambers, and the individual justices, if they agree with it, they send a memo around to everybody else that says, "Please join me." That's just the jargon the justices use. It means please join my name to your opinion.
And sometimes they will have suggestions. You know, "I'd be happy to join your opinion, but I disagree with this section," or "I disagree with this footnote," or "I disagree with this line of reasoning. If you could change that, I would be able to join."
Well, if you are a justice who is getting -- this is the first reaction you have gotten, the first vote back, you might be a little more willing to make change to accommodate that suggestion.
If you've got seven votes already in the bank and somebody says, "Please change this or change that," maybe you're a little less willing, because maybe then some of the others say, "Well, now I'm not happy with that change."
ROBERTS: And it can obviously get to be a very complicated process as the memos fly back and forth and the court tried to come to some consensus around an opinion.
Often -- maybe too often -- there is not total agreement and somebody will write a dissent and send that around and others will join that.
Concurrence: "I can't agree with your reason, but I agree with the result, and so I'm writing separately to give you my reasons."
And the balance changes. Somebody can write a concurrence and, all of a sudden, they've got five votes and it's the majority. And the original majority becomes the concurrence.
But the analysis is done -- and this has been my experience on the court of appeals as well -- a very high level. And I think it's critically important that it's just the justices alone who go into conference room, just as on my court now it's just the judges who go into their conference room because judges and justices in that situation can be a lot more open with their views.
And it's been quite common in my experience over the past more than two years to have a judge say, "This is how I view the case," and then another judge say, "Well what about this?" And the judge says, "Well, I thought about that," or, "The record says this."
And you get out the record. You get it out there and look at it.
SESSIONS: But, at some point, you agree to sign on an opinion one way or the other. Right?
And that becomes a decision of a judge and maybe the majority of the court of maybe a dissent. But that's a decision that's made.
Isn't that why you should not, in this hearing today, blithely start expressing opinions on complex matters when you haven't been through that process and start prejudging matters before you've read the briefs, before you've read the transcript, before you've heard the arguments, before you've talked to your clerks, before you've discussed it with other judges?
Isn't that the essence of what justice is, this careful process that leads us to as fair result as humanly possible?
ROBERTS: I think that's perfectly accurate. And, if you had the experience, as I know every judge and every justice has, of having your original view changed when you read either the other side's brief in a case after reading the opening brief, or had your view changed as a result of the discussion at conference, or had your view changed when you tried to write the opinion one way and it came out the other way, then you appreciate the significance of that process.
ROBERTS: And it's a total distortion and a perversion of that process to start out by saying, "Well, I testified under oath that I thought this decision was correct.
So, "I'm done, you know. No need to read the briefs, no need to listen to the arguments, no need to go into conference and talk with the other judges on the bench. I have already given my view under oath."
Or even if you are going to be open to reconsideration, to start with that barrier, "I testified under oath that this is the correct approach, that this is the right result. Now, maybe you can persuade me otherwise."
Well, that's not the burden that the litigant should have to take. The litigant should be able to know that all of the judges, all the justices that, that person is arguing before have an open mind and are fully open to the process.
SESSIONS: You wouldn't want to call Senator Biden and ask him permission to change the commitment you made, would you, in that hearing?
ROBERTS: No.
SESSIONS: Just a joke there a little bit.
(LAUGHTER)
You don't want to have to read a transcript of this hearing...
(CROSSTALK)
SESSIONS: ... by the time when you try to decide how to rule on a case to make sure you didn't make some commitment.
I mean, I think that's all I wanted to -- the point I would like to make there.
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