I join the throngs who grieve the passing of Justice Ruth Bader Ginsburg. She loved the law and she applied it fairly and bravely. It takes courage to be a judge, to make decisions that are sometimes unpopular. At least half of the litigants who bring cases to court go away unhappy.
Yet I write separately, as Justice Ginsburg would say, see her “Remarks on Writing Separately,” 65 Wash. L. Rev. 133 (1990), to observe that she was unique among all judges in the degree to which she was recognizable to the public. I write in appreciation of her and the legions of judges who do the hard work of deciding cases, including appeals.
Justice Ginsburg was the ultimate appellate judge. The U.S. Supreme Court, after all, is the highest appellate court in the land. Most of the justices, like Justice Ginsburg, previously served as a circuit judge on a U.S. court of appeals.
A Brown Bag Lunch with RBG
I treasure the memory of a brown bag lunch with the late Hon. Ruth Bader Ginsburg and a dozen of my fellow Federal Circuit law clerks. She was then Circuit Judge Ginsburg of the U.S. Court of Appeals for the D.C. Circuit. I was one of the aforementioned law clerks serving circuit judges of the cross-town U.S. Court of Appeals for the Federal Circuit. Ronald Reagan was ensconced across the street in the White House.
We, the Federal Circuit law clerks, had a monthly series of brown bag lunches with speakers including the late Hon. Robert Bork, then of the D.C. Circuit, whose name would soon become a verb. We met with the Hon. Ken Starr, also then of the D.C. Circuit. We heard from judges of “our own” Court, the Federal Circuit. We had a fascinating conversation with Bob Woodward of the Washington Post on the subject of how reporters and editors decide what to print—and what not to print.
What I took away from the brown bag lunch with the Hon. Ruth Bader Ginsburg was not so much what she said off the record as the enduring fact of her presence and dignity. Leadership becomes more real when you meet a leader in the flesh. She cared about the judiciary. She cared even about lowly law clerks working in a sister court. She answered our questions and spoke with us candidly.
Judges are People
Judges are people, flesh and blood, striving to mete out justice. They are not mere computers, crunching data, applying formulas, and spitting out results. They’re better than that. They’re human. That was perhaps the most important thing I learned from my two-year appellate clerkship.
Specifically, judges appreciate genuine respect and competent advocacy. They value good work and good character, especially thoroughness and honesty. The successful lawyer knows his or her case—the facts and the law—presenting strong points even while conceding weaknesses.
As for appeals, they are based on the written record established in the lower tribunal, and the appellate lawyer must know and cite faithfully to the record while citing legal authority to fortify the argument.
“Above all,” said Justice Ginsburg, “a good brief is trustworthy.” Ruth Bader Ginsburg, “Remarks on Appellate Advocacy,” 50 S.C. L. Rev. 567, 568 (1999).
Justice Ginsburg was a judicial rock star. The honorific “Notorious,” patterned after the late American rapper Notorious B.I.G., was conferred on Justice Ginsburg by NYU law student Shana Knizhnik, who created a Tumblr post in 2013 to highlight the Justice’s dissent in Shelby County v. Holder, 570 U.S. 529 (2013) (concerning voting rights and access to the polls).
Justice Ginsburg was small in size yet strong in force. She exerted her capabilities and courage in her powerful office. The nickname Notorious RBG was a hit. For her part, the Justice said she was comfortable with the moniker, observing that both she and the rapper were born and bred in Brooklyn, New York.
Unlike district judges, who often are well-known in their communities, most appellate judges can walk down the street unrecognized by the general public. Even the majority of U.S. Supreme Court Justices can pass incognito much of the time.
Appointments of appellate judges, other than recent appointments to the Supreme Court, are usually little-noticed. The work of an appellate judge tends to be quiet, indeed, cerebral. Appellate judges, though powerful, generally labor in obscurity. The active verb for judging is to sit. I know of one dynamic federal judge who literally had to wave his arms every few minutes in chambers to inform electronic motion sensors that the lights should stay on.
Appearances in appellate courts, even by lawyers, are rare. Appellate judges tend to sit on the bench only a few days in any given month. Few cases are litigated to final judgment, let alone taken through the full appellate process, and then each side gets only 15 to 30 minutes for oral argument before a panel of three or more judges.
Justices and Circuit Judges
The U.S. Supreme Court, at the top of the judicial hierarchy, is unusual among appellate courts in that most of its caseload is discretionary. About 6,000 petitions for writ of certiorari are filed each year, and only about 150 (or 2.5%) of those petitions are granted—usually cases presenting important issues of constitutional law or conflicts between circuits. When the Court grants certiorari, the ultimate opinions are usually high profile, and of course they are written with care and read with scrutiny.
The U.S. courts of appeals, on the other hand, deal mainly with appeals of right, and they decide several thousand appeals every year. Many of those appeals are important mainly to the parties, and to those parties, they are of great importance. In cases decided with published opinions, the opinions constitute precedent that will apply to future cases presenting similar legal issues.
How Appellate Judges Work
Contrary to popular belief, the appellate judge does not sit to decide whether he or she agrees with the trial judge. Instead, the appellate judge looks for errors of law that affect the result.
The appellant who argues that the trial judge “could have” or “should have” decided in favor of the appellant wastes his or her words. What counts on appeal is legal error affecting the result. As to the evidence, the standard of review must be considered. For appeal from a jury verdict, the standard is whether “substantial evidence” supports the verdict. For appeal from a bench decision, the standard is one of “clear error.”
The successful advocate gauges the height of the bar, as in a high jump, and presents his or her case accordingly.
Appeals follow a prescribed sequence. The appellant files a principal brief. The appellee responds with its own principal brief. The appellant files a reply brief. If oral argument is granted, it will follow soon after briefing is completed. A decision then will be rendered, in days, weeks, or months, often but not always explained in an opinion.
Appellate proceedings run like clockwork, though in some cases the cogwheels can become jammed, typically after the appeal is submitted. There can be wrangling within chambers or between chambers. Sometimes this shows up in the form of a dissenting opinion. Indeed, Justice Ginsburg was known for her cogent dissents.
Chambers and Law Clerks
In the chambers of the typical appellate judge, the phone doesn’t ring often. Except for oral hearings in open court, most of the work is done in silence, and it is based mainly on the written record, including briefs.
Each appellate chambers is like a solo law practice. Each federal appellate judge, including justices of the Supreme Court, has a secretary and as many as four law clerks.
Law clerks serve at the pleasure of the judge to whom they report. Most clerkships proceed directly or soon after law school, usually lasting for one or two years. It is a rare privilege to serve as a law clerk. It is like a post-doctorate, but instead of just filling one’s mind with legal principles, the law clerk works on real cases and may be assigned to draft opinions.
As for appellate judges, they’re brighter and perhaps bolder than the average person—yet they’re still mostly ordinary people, making extraordinarily important decisions. It is the office of the judge that carries power, especially when the occupant of that office, like Justice Ginsburg, refuses to be cowed.
Our Legal System Works
Do you have a legal dispute? Call your lawyer. He or she can help you decide whether to take your case to court.
Good bye, Justice Ginsburg. Thanks to you, and to all who wear the black robes of justice, for your exemplary service.