State Supreme Court opinions as law development.

• Author: Flango, Victor Eugene

1. KEY ROLES OF APPELLATE COURTS

   The controversy over Justice Sotomayor's statement that the "Court of Appeals is where policy is made" illustrates that there is still confusion over the role of appellate courts. (1) That confusion is exacerbated by the recent movement toward measuring judicial productivity by opinion production, as noted below.

   Appellate courts have two primary functions: "error correction" to ensure that law is interpreted correctly and consistently and "law making" to provide a means for the development of law through their decisions and explanations of decisions. (2) In states with only one appellate court, that one court must perform both functions. In states with two levels of appellate courts, the intermediate appellate court is often assigned the error-correcting role and the court of last resort, most often called the supreme court, (3) is primarily concerned with the development and declaration of law. Indeed, a primary rationale for the creation of intermediate appellate courts is to dispose of the bulk of appeals so that supreme courts can focus on cases with significant policy implications or cases of high salience to the public. More than thirty years ago, a group of scholars noted that they had observed

   an emerging societal consensus that state supreme courts should not be passive, reactive bodies, which simply applied "the law" to correct "errors" or miscarriages of justice in individual cases, but that these courts should be policy-makers and, at least in some cases, legal innovators. (4) As courts of last resort, state supreme courts have the final authority on issues most basic to people's lives. In the words of Professor Rosenblum:

   [I]n the complex system of government we adopted, most questions of private law were left to the states. The national government had almost no part in establishing or developing the law of property, contracts, wills, personal injury or damages.... [W]ithin the states it was often the courts rather than the legislatures that actually formulated such law. (5) Moreover, state courts of last resort "interpret not only state laws but also federal laws," and, in the process, they "contribute significantly to public policy." (6) Justice Brennan acknowledged as much when he wrote that "state courts have responded with marvelous enthusiasm to many not-so-subtle invitations to fill the constitutional gaps left by the decisions of the Supreme Court." (7) Professors Stumpf and Culver argue that the trend continued as the Burger and Rehnquist courts became more deferential to state courts, with the Supreme Court "literally inviting an increased activism in state judicial policy-making, and in many instances state supreme courts have displayed their willingness, if not at times their eagerness, to move into the vacuum." (8)

   If this trend continues, the state supreme courts will increasingly "'define the quality of life' in American states and communities." (9) It is interesting to note that a very recent poll showed that seventy-one percent of Americans say their state supreme court should keep its ability to decide controversial issues, and sixty-eight percent believe that the courts either have the appropriate amount of power or should be awarded even greater power. (10) Only twenty-four percent thought the state legislature and the governor should have more power over the courts.) (11)

   Another indication of state supreme courts' increased role in policy making is the renewed interest in election of judges and justices. According to Roger Warren, both a former judge and a former president of the National Center for State Courts,

   [s]tate judicial elections have become increasingly like elections for political office: expensive, contentious, partisan, political, and dominated by special interests.... Electing state court judges attuned to a particular special interest or ideology, and defeating those not so attuned, is increasingly viewed by political parties and special interests as politics--and business--as usual. (12) II. OPINIONS AS THE MECHANISM FOR DEVELOPING THE LAW

   As the weakest branch of government, courts have no way to enforce their will except through their powers of persuasion. Indeed, the following observation about the United States Supreme Court really applies to all courts of last resort: "The power of the Supreme Court manifests itself in many forms, including in structural prestige and the reputation of individual justices, but is expressed through only one form: the written legal opinion." (13) Thus, the appellate process requires that courts provide the reasons behind their decisions. In the words of Professor Stone, "It]he legitimacy of the judicial branch rests largely on the responsibility of judges to explain and justify their decisions in opinions that can be publicly read, analyzed, and criticized." (14) Full opinions--those that offer a justification for decisions and the reasoning behind them--guide the decisions of lower courts, and should be issued whenever the courts announce a new rule of law, resolve a conflict between subordinate courts, make a non-unanimous decision, or make a decision of substantial interest to the public. (15) The following analysis and discussion, and the charts and tables that follow, will address both the factors relevant to the issuance of those opinions and their effects on the development of the law.

   1. Does Opinion Production Vary Over Time?

      1. Assessing Quantity and Quality

         How many opinions per year are necessary to develop the law? Does the number of opinions per supreme court vary much or is it relatively constant over time? In their study of sixteen supreme courts between 1870 and 1970, Kagan and his colleagues found that some supreme courts wrote as many as 500 opinions per year, while others wrote fewer than 100. (16) The average did change over time, but within a comparatively small range: The average number of opinions per court issued in 1870 was 131, continued to increase to its high point of 291 per state in 1915, and then decreased into the early 1970s. (17) Professors Stumpf and Culver observed that

         as populations grew and state legislatures shrank from the task of reforming their judicial systems along more modern lines, the number of written opinions of some of these courts rose to as high as 400 or 500 per year (e.g. California and Michigan); for other state supreme courts (North Carolina, Alabama, and Minnesota), this figure hovered around 300 to 400 per year. (18) They concluded that the consequences of writing a relatively high number of opinions are not positive, as doing so results in "less legal research undertaken in the writing of opinions, fewer dissents, shorter opinions, and an overall lower quality of output than these state courts had produced in earlier periods." (19) And they point out that these courts' "capacity to articulate carefully legal policy for the state, and nation, was thus seriously impaired." (20)

         One conclusion that could be drawn from this research is that if law development is the goal, an error-correction method of evaluation is not appropriate. Consequently, it is not appropriate to evaluate productivity in courts of last resort based upon opinion production or to rate states on number of opinions per justice, just as it would not be appropriate to evaluate state legislatures by number of bills enacted into law. The quality of the court decisions and the rationales for the decisions as documented in the opinion are the appropriate criteria. One great decision that breaks new ground, reconciles conflicts of laws, or settles an area of law is worth more than a larger number of "routine" decisions that are justified by more or less conventional lines of reasoning.

         This would imply that the scholars who explicitly define productivity for appellate courts as "the number of opinions a judge publishes in a year" (21) should make a distinction between the functions of courts of last resort and those of intermediate appellate courts. The statement that "[a]ll else equal, a judge who publishes more opinions is better than a judge who publishes fewer opinions" (22) may be appropriate for intermediate appellate courts, which have the primary responsibility for error correction, but it is not appropriate for courts of last resort, which are developing the law. This statement also appears to attribute opinion production to judges, rather than to collegial courts. If that is the case, and if the production of more opinions is to be the measurement, a supreme court justice could be more "productive" by writing separate concurring or dissenting opinions, which would be counter to the primary function of supreme courts to clarify the law and reconcile conflicting interpretations. (23)

      2. A Snapshot of the Status Quo

         As a baseline, what is the average number of opinions issued in courts of last resort today? Before answering that question, the definition of opinion used must be clarified. Kagan and his colleagues counted all opinions of at least one page in length. (24) The ideal would be to identify full written opinions providing a rationale for the courts' decisions. The NCSC's Court Statistics Project, in cooperation with the National Conference of Appellate Court Clerks, has recently recommended that the standard terms for opinion be "Full Opinion," "Memorandum Opinion," "Summary/Dispositional Order," and "Other Opinion." Full opinion is defined as one in which there is "an expansive discussion and elaboration of the merits of the case or the defect or procedural error." (25) In contrast, a Memorandum opinion has only a "limited discussion of the merits of the case or the procedural determination" and the Summary/Dispositional Order has very little discussion or comment on the case. (26)

         Unfortunately, this improved method of classification has just been adopted and the new terminology is not yet in widespread use. Consequently, we are left with...