Upon Further Review

Although trial judges occupy the lowest rung on the ladder of judicial review, in many respects trial judges may be the most powerful type of judge, even more powerful than appellate judges located higher up on that very same ladder. What makes trial judges so powerful? For one thing, they preside alone over a case while it is pending in the trial court, and thus they don't need one or more other judges to agree with them to issue an authoritative ruling. And, for another thing, the vast majority of trial court rulings will never be the subject of appellate review, and even many of those that are will end up being subject to the highly deferential “abuse of discretion” standard of review.

Although for the reasons explained, a trial judge may have even more power than an appellate judge to influence the outcome of a particular case, it cannot be denied that appellate judges themselves have great power that trial judges are incapable of exercising. When an appellate judge is in the majority in a precedential ruling, his view of the law will not only bind the parties in the case directly under review but will also bind the parties in other similar cases that will arise for decision in the future.

Of course, when an appellate court is hearing and deciding cases using three-judge panels, as the Pennsylvania Superior Court and Commonwealth Court most often do, the views of a single appellate judge cannot become legally binding on the parties unless at least one more judge on the panel agrees with those views. Thus, unlike at the trial court level, appellate judges often need to compromise or temper their views on a case in order to attract the support of a majority.

These thoughts came to mind recently in thinking about reporter Max Mitchell's article published in The Legal Intelligencer focusing on the degree of agreement and disagreement among Justices serving on the Supreme Court of Pennsylvania. The article, whose headline stated that “Data Reveals an 'Independent,' 'Unpredictable' Pa. Supreme Court,” noted that one justice had the most other justices agreeing with her opinions overall, while another justice has the distinction of writing the most opinions in cases decided by a 4-to-3 vote. Because Pennsylvania's highest court has seven justices, a minimum of four needs to agree in order to produce a majority opinion.

The question that seems to present itself is which of these two justices is more effective in getting his or her colleagues to agree with his or her position—the justice who has the most support for her opinions as an absolute matter, or the justice who has written the most opinions in cases decided by the narrowest margin necessary to retain a majority? The answer to this question is cannot be definitively determined based solely on the available data, but a strong argument exists that retaining the necessary votes in a 4-to-3 case may take more effort and persuasion than writing opinions whose outcome a lopsided majority of the court has agreed to support.

The importance of deciding an appeal by means of an opinion that has the support of a majority of participating judges cannot be overstated. When a seven-member court decides an appeal by splintering 3-to-2-to-2, or 2-to-2-to-2-to-1, it can become very difficult, sometimes even next to impossible, for parties and lower courts to figure out what legal principles, if any, resulting from that decision will govern in future cases. As coincidence would have it, on Dec. 8, 2017, the U.S. Supreme Court granted review in a case titled Hughes v .United States, No. 17-155, that asks the court to reconsider how lower courts should go about trying to determine the legal rule, if any, that emerges from a sharply splintered U.S. Supreme Court ruling that lacked any majority opinion.

At present, the general rule is that the view taken by the justice or justices who concurred in the judgment on the narrowest grounds should be considered as the holding emerging from the case that will bind lower courts. Hughes requires the court to consider what holding, if any, emerged from an earlier U.S. Supreme Court ruling in which the court divided 4-to-4-to-1. The two groups of four completely disagreed over the proper outcome of that earlier case. And the remaining justice, whose vote was critical to deciding the outcome of the case, reached the same result as one of the two groups of four using an approach that none of the remaining eight other Justices agreed with to any extent.

The Hughes case, which is scheduled for oral argument before the U.S. Supreme Court on March 27, will be decided (hopefully by means of a majority opinion) before the court adjourns for its summer recess in late June of this year. Although the Hughes rule will not technically be binding on the Pennsylvania Supreme Court or other state courts concerning how they determine what rule, if any, emerges from a splintered state appellate court decision, the Hughes case does serve to underline the importance of reaching a majority outcome, whenever possible, when an appellate court is deciding a pending case.

To summarize, we operate in a system where appellate court opinions are far more significant than trial court opinions, because appellate court opinions create precedent that will be binding on future cases and the judges deciding those future cases. At the same time, trial court judges are in many respects more powerful than appellate court judges, because a trial court judge doesn't need the agreement of any other judge to decide things, and many trial court rulings will never be the subject of appellate review. Accordingly, appellate court judges who can work with their colleagues in case after case to obtain majority support for their views will, over time, be the most powerful of all.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached at 215-830-1458 and via email at [email protected]. You can access his appellate web log at http://howappealing.abovethelaw.com/ and via Twitter @howappealing.