August 28, 2019 From the Bench

Judicial Deliberation Unmasked

A lot goes on that lawyers will not find written down or explained. Anywhere, except here.

Hon. Bridget Mary McCormack

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An old adage—attributed, with remarkable variety, to both Abraham Lincoln and Roy Cohn—holds that it is a good thing to know the law but a better thing to know the judge. To some extent, this maxim (with which many lawyers would agree) rests on the unspectacular proposition that individual judges have different ways of doing business and that it helps (perhaps a lot) to know how the judge you’ve drawn goes about things. But the axiom gets at a more provocative idea as well: that judicial decision making is a Delphic process cloaked in mystery and that our best shot lies in having some sense of what the Oz behind the curtain actually looks like and how she or he pulls the levers. The mysteries multiply on the appellate level, where lawyers attempt to divine the secret thoughts and practices of not one but three judges—or, in my court, seven; or at the U.S. Supreme Court, nine; or when an appellate court sits en banc, more than a dozen. Insert shuddering gesture here.

I understand why lawyers think this way. I advocated as an appellate lawyer for about 15 years and I was full of questions about how the judges I appeared before made decisions. I was intrigued both because I wondered how the process might affect my work before the court but also simply out of intellectual curiosity: How did it all work, anyway? Trial judges’ processes often seemed more obvious, even stated plainly in court-specific rules posted on websites and provided to counsel. In any event, the math was simpler: Ask around and figure out how one judge thinks about stuff.

But appellate court decision making, not so much. Sure, written rules and practice guidelines provide some insight, just as they do at the trial level. But the decision-making process is inherently more complex—and correspondingly more mysterious—because it involves a collection of distinct processes. Appeals implicate the thinking of multiple individuals—and their thinking in combination. Conversations at conferences do a great deal of work. Bargaining toward compromise can occur—for better or worse. The exchange of majority and dissenting opinions may shape the final product. A lot goes on that lawyers will not find written down or explained. Anywhere.

My purpose here is to do a modest reveal—to unveil (to the extent I can) what I think lawyers should understand about how appellate courts go about making their decisions. But first let me preview the limits of my contribution. I write here only about the appellate process: Trial court judges are sole decision makers in their courtrooms, each with his or her own individual ways of doing things. I write from the perspective of one who decides case after case with the same colleagues; many other judges serve on intermediate appellate courts where they sit on changing panels, serving with different colleagues each time they hear cases. And other state supreme courts surely have different rules and norms and traditions than Michigan’s. On top of all that, most of you reading this are unlikely to practice in the Michigan Supreme Court. Have I adequately lowered your expectations? Here’s why you might keep reading even so: What I hope to convey is the critical role that relationships and personalities play in appellate judicial decision making.

The Formal Process

Let’s start with the formal process. Every Michigan Supreme Court case begins with an application for leave to appeal. Our jurisdiction is largely discretionary with one limited exception (we must review certain Judicial Tenure Commission decisions), and our standard for what makes a case “leave-worthy” is governed by our own court rule, which sets out principles to guide our decision making at this critical step. Those principles are what you’d expect: “the issue involves a substantial question about the validity of a legislative act,” “has significant public interest and the case is one by or against the state or one of its agencies or subdivisions or by or against an officer of the state or one of its agencies or subdivisions in the officer’s official capacity,” or “involves a legal principle of major significance to the state’s jurisprudence.” You will note that these standards don’t have much to do with fixing a bad result in an individual case; and, indeed, I suspect that most final appellate courts do not view themselves as error-correcting institutions.

In Michigan, the first person to review an application is not one of the seven justices or even one of our clerks: It is a senior lawyer in our Commissioners’ Office. One commissioner reviews the application, the answer, and any amici submissions in support of either side, and writes a report, which is then provided to each justice’s chambers for review.

The commissioner’s report typically contains the information we would want to decide whether any action should be taken: the parties’ arguments, the decisions reached by the courts below, the relevant law (provided by the parties and not). But it also includes the commissioner’s recommendation (and, sometimes, alternative recommendations) about what order should enter as a result of the application. That recommendation is most often that the court should deny leave with a standard denial order: “On order of the Court, the application for leave to appeal the judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.”

Sometimes, though, the commissioner recommends an order for some other action such as granting leave to appeal, remanding to the court of appeals as on leave granted, ordering a response from a party, or remanding for a hearing in the trial court (among others). Recommended orders granting leave are automatically sent to conference. All other recommended orders automatically enter on a given date each month unless a justice “holds” the case for conference consideration. Each justice has his or her own process for reviewing these reports and deciding which to hold for conference discussion. But many orders enter each month automatically as a result of this process.

Allow me a short detour from my main mission. This process is necessary given the volume of incoming applications. The Michigan Supreme Court averages between 1,800 and 2,000 new applications each year. But it also means that the commissioners have a tremendous amount of power in the leave application process. And because getting through this process is a critical first step to getting relief, understanding how the Commissioners’ Office functions, what the individual commissioners’ processes look like, who the individual commissioners are, and what features make their work easier and harder would be time well spent, but not for this piece. I often accept appellate lawyers’ invitations to speak at meetings about best practices in brief writing and in oral argument, but I always tell these audiences that the speaker they should be inviting is our chief commissioner because that initial process is the critical first hurdle for any litigant. But that’s a different piece for another day.

I suspect that every state has some analogous triage process, even if the states differ in their mechanics and details. Lawyers who look past that initial process and toward the ultimate briefing and argument before the court miss a critical step. Statistically, most appellate cases are lost (or, depending on your perspective, won) during this initial review because they don’t survive it. But I would guess that most lawyers (who are not appellate specialists) in my state have little understanding of who the commissioners are or what they do.

Conferences

Only a few applications that make it through this first step find their way onto a conference agenda. A fraction goes there automatically—those for which the commissioner recommends that we grant leave. And a slightly larger group is conferenced because one or more of the justices disagrees with the recommended order.
Conference is a collaborative and collegial process, and it is where most of the court’s deliberative work gets done—which is interesting, because the content of our meetings is confidential. On my court, even the agendas are confidential; lawyers have no way of knowing whether their case is being discussed or why the justices might find it interesting. Contrast this with the U.S. Supreme Court, where anyone can look up any pending certiorari petition and see the conference where it will be considered and, after that conference is complete, can see the outcome of the case.

We conference weekly, generally on Wednesdays. We start first thing in the morning and finish when we make it through the conference agenda or agendas. That can take just a few hours or much more, depending on the agendas. I say agendas, plural, because we may have one or two or three on any given conference day. Understanding the different agendas may cast some light on how we go about our work.

Agendas fall into several different categories. We regularly have a conference agenda, which concerns new applications for leave. Here, our discussion focuses on what action to take in each case. We also often have an opinion agenda. When one member of the court has drafted and circulated an opinion, we discuss the draft and revisit our original vote as a result of that draft. If a draft opinion inspires a dissent, we conference both opinions after the dissent circulates. Both opinions can be (and often are) conferenced many times while the respective authors respond to each opinion and accommodate the concerns of the justices voting with their opinion. An opinion might therefore appear on an opinion agenda many times before it is released. Finally, because the Michigan Supreme Court is responsible for the administration of all of the courts of the state, we often have an administrative agenda too. This agenda will include decisions such as selecting chief judges for particular trial or intermediate appellate courts, whether to publish a new court rule or a change to an existing rule, appointing members to committees and commissions that fall within the court’s jurisdiction, and considering administrative orders. The agendas ebb and flow throughout the term: We are conference-case heavy at the start of the term and opinion-case heavy at the end.

We hold one other regular conference throughout the term: the post-oral-argument conference. At the end of each day’s oral arguments, we discuss each argued case. Some of these cases turn out to be easier than others, but we discuss them all and try our best to register our position on the resolution of each. Our “votes” at this stage are more preliminary commitments than final answers. The voting at these conferences is designed mostly to determine what position seems to have garnered a majority so that we can assign an author to draft an opinion consistent with that position. As earlier explained, once the opinion is drafted, it returns to conference and is voted on anew. And this can happen repeatedly, depending on the drafting process. It is not unusual for a justice to change his or her position once a draft has circulated. In fact, majorities change and sometimes even the opinion drafter changes his or her view. The drafting process no doubt sharpens one’s thinking.

Each justice has his or her own approach to conference preparation. Each of us has a staff of five (some of us have five lawyers, some have four clerks and a non-lawyer administrator), but we each run our internal chambers’ processes differently. I have five lawyers in my chambers. Each is assigned to writing a memo for designated conference agenda items. Typically, I review their work and the other external work produced with each item a few days before the scheduled conference so that we have time for additional research and memo drafting. If I think my colleagues would benefit from time to consider my views before the conference, I circulate a memo explaining those views. And then there are some cases that cause me to pick up the phone to discuss it with a colleague before the conference. More on this in a bit.

We all arrive at conference having prepared for it with our own staff in our own way. And here is where the formal rules and informal norms kick in. Formal rules and processes first: We have a typical order in which we consider the agendas, starting with the opinion agenda, then the conference agenda, and finally the administrative agenda. We have rules about who can be in the room: In addition to the seven justices, the clerk of the court and the chief commissioner are in the room for the conference and opinion agenda discussions. The court’s administrative counsel is in the room for the administrative agenda.

Each agenda item is discussed separately, and the junior justice votes on the first item first. The voting proceeds to the next most senior justice, all the way around the table with the chief justice voting last. The second item proceeds with the second most junior justice starting the voting. And each item proceeds in this order in turn.

The “voting” is often more discussion and less a casting of ballots; that is, often a justice will explain what his or her vote is and what factors influenced it so that others can respond, and discussion follows. Votes are often changed, and sometimes discussion reveals a new idea altogether for how to proceed with a particular question than those that were noticed in the agenda. If discussion does not produce a unanimous approach to a given case or item, the votes govern.

Our rule is that it takes four votes to grant and five to take peremptory action, but this simple math can get complicated. If a single justice is not participating, a 3–3 tie means, in a conference matter, that the application is denied by equal division. In the case of a post-argument vote, this would mean that the court of appeals’ decision is affirmed by equal division. If two justices are not participating, then three votes govern.

As in any judicial process, there are sometimes arguments for delay. So any justice may ask to pass a case for consideration at a future conference for any reason. Passed cases will generally be placed on the agenda for discussion at the next conference. Similarly, at its first opinion conference appearance, any newly circulated majority opinion may be passed at the request of any justice. Following a discussion that identifies any justice who wishes to write separately, in dissent or in concurrence, the dissenting or concurring justice has four weeks within which to circulate the dissenting or concurring opinion. Similar rules govern passing any item from an administrative conference agenda.

Less-Formal Processes

And then there are the norms, the less formal processes that we have all become accustomed to and honor. These are the shortcuts and strategies we have developed to get our business done efficiently and effectively. For example, a justice’s interest in a given case or issue may make it appropriate to change our way of doing business. So, while we have voting rules that proceed in order of seniority, when there is a matter that one justice has taken a particular interest in, for example, by circulating a memo before the conference advocating a particular action, we often go out of order and let that justice lead the discussion.

In the same vein, some requests are usually granted without much discussion. For example, sometimes a justice suggests that we hold off on deciding a case because of a different case that is pending somewhere and that might affect our thinking and decision. It could be a case in our own court, or it could be one pending before the U.S. Supreme Court. These requests usually make sense and generally do not encounter any resistance. Similarly, in an application that looks likely to be denied but that has not yet been responded to by the opposing party, the request by a justice to order a response is routinely honored. When you have major work to do, such minor exercises of respect and deference matter.

There are norms that govern our substantive decision making too. For example, as noted above, we are not an error-correcting court. As a result, while there may be any number of cases decided by different court of appeals panels that some of us would have decided differently, when those opinions are unpublished and are simply a routine application of law to particular facts, our decision-making norm is to deny leave. Relatedly, when the court of appeals has decided a question that has statewide importance and our initial impression is that the panel decided it correctly, we might grant leave anyway because the question is one that deserves the attention of the state’s high court. But all of these decisional norms can do lots of work—or very little—depending on many other factors in any given case. In a court with a discretionary docket, there is plenty of room for reasoned and civil disagreement about how they should feature in any specific example.

If it isn’t clear yet, the decision-making process is dynamic and relationships between justices are critical. No single justice can accomplish a whole lot. Unless at least three of my colleagues agree with my view, it will be fairly meaningless. Given this, there is a high value placed on the ability to convince others at the table. And that task is personal.

My colleagues need to trust that I am an honest broker. They need to know that I will listen to them when they bring a question, concern, or idea to the table. They need to know that I will carefully read any memo they circulate. They need to know that I will change my mind when presented with a good argument suggesting my thinking was incorrect for any number of reasons. They need to know that I will take their call if they want to talk more about any question on the agenda and that I will do the follow-up work that is required when they ask a question I had not yet thought about or raise a concern that had not gotten my attention. In short, they need to know that I am working with them—never against them—even when we disagree and come out on opposing sides of a question.

For me, at least, it is the in-person and on-the-phone discussions about the questions we are deciding where the most important work is done. I am hard-pressed to think of a conversation with a colleague about a difficult legal question where my thinking didn’t get clearer. The process is so important, in fact, that I regularly phone some of my colleagues even as I am still forming my thinking about the issues on the agenda. I believe these informal conversations to be the single most important part of judicial decision making on a multi-member court. I often change my view in these conversations—and also often influence my colleagues’ views.

This last part is, I suspect, the most useful peek behind the curtain that I have to offer, and I’m confident it is also the most universal, because I suspect it is a feature of any multi-member court that relationships are central to that body’s decision making, even if only in the breach. This isn’t an original idea, of course. And isn’t even unique to courts. Think of other governing multi-member bodies: legislative and administrative rule-making bodies, corporate and nonprofit boards, community organizations, even juries. The relationships between the individual members of these bodies inevitably have a tremendous effect on how they make decisions. Individual members are more or less central to decision making, depending on their relationships with their colleagues.

There are bodies of scholarship that cross academic disciplines about this very topic. Social psychologists have studied how groupthink leads to worse decision making, how polarization within a group can lead to more extreme decisions, what factors increase good decision making, and what factors impede it. I suspect that a multi-member court’s decision-making process would be a fascinating social science study for any researcher, but the confidential nature of the deliberations makes it an unlikely one.

Takeaways

For now, what takeaways are there for lawyers who practice in these courts? A single justice with the interest and the effort can convince three others. Some justices are famous for having this quality. There are countless anecdotes about Justice William Brennan’s capacity to influence his colleagues; at one point in the Supreme Court’s history, if you had Justice Brennan’s vote, then you could count on a few more coming along.

Appellate advocates need to figure out if there is such a justice on their question. Get her attention, in writing and at the argument. Give her the best help you can to advocate for your cause within the court’s internal deliberations. As an advocate, helping a judicial ally is the least you can do—and probably also the most.

Your case is out of your hands for big and important parts of its life. What happens at initial application review, at conference, and in those conversations before and after conference among the justices is critical and, for the most part, completely outside your control. As I’ve shown, conversations are central to the appellate decision-making process. You can’t be part of them, but you can do the next best thing by helping out someone who thinks about your case like you do—and who is part of those conversations.

Hon. Bridget Mary McCormack

The author is chief justice of the Michigan Supreme Court and an associate editor of Litigation.


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