What appellate judges do.

• Author: Sims, Rick

INTRODUCTION: THE PAST AS PROLOGUE

As we all know, partisan battles have been raging in the United States Senate over the confirmation of President Bush's nominees to various circuits of the United States Courts of Appeals and the Supreme Court. This is nothing new. We saw similar partisan battles over the judicial nominees of President Clinton (1) and over the nominees of presidents before him. (2)

But these battles raise some questions: Are appellate judges simply politicians with robes on? Does it mean anything anymore for appellate judges to "apply the law," or are appellate judges simply making it up as they go along? A good place to start is with a line from John Chipman Gray, attorney and professor at Harvard Law School, who wrote in 1909 that "the law is what the judges declare." (3)

In one sense, this statement remains true today, because the final decision of an appellate court still resolves a dispute of law, and therefore declares it. But in another sense, Professor Gray's statement had a different meaning in 1909 than it does today, because appellate decisionmaking was vastly different then.

In 1909 and before, appellate judges often decided disputes without reference to statutes, simply because few statutes existed. Appellate courts in England and in this country exercised their common law power to decide cases by making up an appropriate rule of law according to what they considered wise public policy. This is how we got such things as the rule in Shelley's case (4) and the rule against perpetuities, (5) both of which prevented landowners from tying up title to their land for generation after generation.

When courts exercised this common law power to make up the law, they were acting in a legislative capacity, as Justice Holmes recognized:

 [I]n substance the growth of the law is legislative. And this in a deeper sense than that what the courts declare to have

always been the law is in fact new. It is legislative in its grounds. The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis. (6)

The courts' common law power to declare a rule of law in the absence of legislation on the subject exists to this day, and is found most frequently in the law of torts. A relatively recent example is found in Greenman v. Yuba Power Products', Inc. (7) In that case, a man using a Shopsmith--a combination power saw, drill, and wood lathe--was seriously injured when a piece of wood flew up and struck him in the head. He sued the manufacturer for breach of warranty, and a jury awarded him $65,000. The manufacturer appealed, contending that the man had not given it timely notice of breach of warranty. In an opinion by Chief Justice Roger Traynor, the Court held that the timeliness of the notice did not matter, because he should have collected on another legal theory that required no notice to a manufacturer: that the manufacturer of a product is strictly liable without fault to a consumer of the product who is injured by it when using the product as intended. (8)

Think about it. The rule in Greenman established the law not only for that case but for all later cases in California (and, in fact, the Greenman rule of strict liability was later adopted by almost all the states). This is a rule with enormous social and economic consequences, yet it was made up by appellate judges exercising their historic common law power. This is not to say the Greenman rule was wrong, because it was not. It is simply to illustrate the potency of the state appellate courts' historic common law power. Thus, to return to the point of beginning, John Chipman Gray must have meant "The law is what the judges declare" in the literal sense, believing that judges, exercising their common law power, often made up what the law was in any given case.

Since the time of Gray and Holmes, however, the common law power of both federal and state courts has been drastically diminished. The general common law power of the federal courts was...