A Brief History of Certiorari, Error, and Appeal

No matter how the case got there, the Court had to decide the whole thing.

As I suggested yesterday, there appears to be a disconnect between the statute that gives the Court certiorari power and the Court's rules and practice. The former says the Court can take "cases" through certiorari and "questions" when certified by a circuit court. In practice, however, the Court only answers preselected questions. One might think that the power to preselect questions just comes with the general appellate power or is part and parcel of certiorari. If so, there's no problem. Today, I want to look at the relevant history to see if this is or is not the case.

Let's start with certiorari. The oldest and most common use of the writ of certiorari was to order the transfer of records to a superior court. If parts of the record were missing, the reviewing court would issue a certiorari to the lower court to have the missing pieces of the record sent up for review. A second use emerged, primarily in criminal cases, to remove a case when the accused could not get a fair trial in the lower court. The third use is the one that is most relevant. Certiorari could issue "in the nature of a writ of error." Dating back to Edward I, the writ ran to courts to take jurisdiction (usually from administrative tribunals) over appeals as if on error. The rule soon came to be that "certiorari would lie to any body created by statute which acted judicially."

The Supreme Court recognized the same three uses of certiorari. Here's the relevant passage from Harris v. Barber. Note the link to the writ of error:

A writ of certiorari, when its object is not to remove a case before trial, or to supply defects in a record, but to bring up after judgment the proceedings of an inferior court … is in the nature of a writ of error. Although the granting of the writ of certiorari rests in the discretion of the court, yet, after the writ has been granted, and the record certified in obedience to it, the questions arising upon that record must be determined according to fixed rules of law, and their determination is reviewable on error.

Certiorari, as an appellate device, is thus simply a pathway to a writ of error. So, to understand what is possible under common law certiorari, we must explore the writ of error and its equitable analogue, the appeal.

The writ of error allowed the Court to review cases at law, and the appeal brought cases from equity or admiralty. The key difference between them was that error limited review to legal questions and appeals gave the Court power to review law and fact. The similarities, however, are more important. Review on either method was mandatory (the Court was required to decide the case if the petitioner satisfied procedural requirements) and comprehensive (Justices had to review the entire record).

Writing in 1891 in the wake of the Evarts Act (more on that statute tomorrow!), the Court put it this way, "From the very foundation of our judicial system the object and policy of the acts of Congress in relation to appeals and writs of error … have been … to have the whole case and every matter in controversy in it decided in a single appeal." This obligation was so strong and wide-ranging that justices recognized they had an independent duty to search out errors that had evaded counsel. Justices would reverse judgments for errors that the plaintiff-in-error did not include in the bill of exceptions. As the Court put it in 1846, "[I]t is the duty of the court to give judgment on the whole record, and not merely on the points started by counsel."

This is pretty clear language. Appellate review on the writ of error requires the Court to look at and to decide "the whole case and every matter in controversy," or put differently to "give judgment on the whole record," not just discrete preselected questions. This has been true since "the very foundation of our judicial system."

Indeed, the throughline of the Court's practice for more than a century was a cleareyed and universal understanding that the Court had to decide the whole case. Chief Justice Marshall put it best in Cohens (which came to the Court on a writ of error):

[W]ith whatever difficulties, a case may be attended, we must decide it …. [The Court has] no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.

If the appellate power gave the Court the power to focus on particular questions in cases —instead of the full record—it would have been easy to dodge those questions Marshall would "gladly avoid." And if certiorari's role as an appellate device was to simply bring the case to the Court as if on a writ of error, then it wouldn't permit question-selection either.

One Last Thing

A few commenters on yesterday's post asked whether question selection really affects cases. Here's one example. Suppose you put two questions in your certiorari petition: a procedural question and a constitutional question. If you win on either, the Court should reverse the decision below. Let's assume that if the Court considers the procedural question, you would win. Your problem is that the Court likes the constitutional rule propounded in the judgment below. So, what does it do? It grants certiorari only to the constitutional question, says the lower court got it right, and it affirms. If the Court had decided the whole case, you would have won. But they picked the question they wanted to talk about, so you lost. [By the way, if you're interested in how the Court uses its agenda-setting powers to reach issues it shouldn't, I heartily recommend Prof. Monaghan's article On Avoiding Avoidance.]

If you're looking for a clean example of where the Court's willingness to limit review to a particular question caused it to get a case wrong, I suggest comparing Shapiro v. Thompson with Edelman v. Jordan. In Shapiro, the Court simply ignored the question of whether the Eleventh Amendment barred retroactive relief and affirmed the judgment below ordering payment. When the Court examined the question five years later in Edelman, it had to sheepishly admit that it had fouled up earlier cases because it had not been paying attention to all the questions included in those cases.

Comments

[Dan Schiavetta]

"A few commenters on yesterday's post asked whether question selection really affects cases."

I'm glad you are reading comments (though there is a lot of noise to signal ratio there), but I've looked at the comments to yesterday's post and nobody said that. It's obvious to everyone that question selection affects cases.

[gormadoc]

Academics usually email their comments, even on blog posts. The VC readership is much larger than the comment section.

[Dan Schiavetta]

OK but it still seems like a silly thing for someone to say.

[Noscitur a sociis]

Lots of people were saying that the distinction Prof. Johnson is drawing is illusory or meaningless. You were one of them!

[Dan Schiavetta]

Nobody is denying that question selection affects cases. What is meaningless is the distinction between whether an appellate court answers questions, or decides cases, because the selection of the question usually determines the decision.

[Noscitur a sociis]

What is meaningless is the distinction between whether an appellate court answers questions, or decides cases, because the selection of the question usually determines the decision.

Which is why it matters, as Prof. Johnson's example illustrates.

[Dan Schiavetta]

The Prof is denying that an appellate court decides cases. It does.

[ReaderY]

Professor Johnson,

Would note this is the first post in the series that the nature of your argument becomes apparent. As I understand it, you are arguing that under a writ of error, an appelate court is obligated to look at the entire record and cannot focus its review on specific questions. You are also arguing that the Supreme Court must follow the rules of a common-law writ of error, so the whole business of focusing only on specific questions of law is ultra vires.

I have two questions on this.

1. What is the source of authority for your claim that the Supreme Court must follow the rules of the common law writ of error? Why shoukd this be so? Why can’t Congress depart from the common law by statute? Why can’t the Supreme Court change the common law under its supervisory authority? The common law has been departed from and changed in this country many times. The constitution merely gives the Supreme Court appelate authority. Their doesn’t seem to be any specific requirement as to how that authority will be exercised. And what the Supreme Court is currently doing is a kind of appelate authority. You seem to be arguing that the Constitution implicitly requires the specific kind of appelate procedure that English common-law courts exercized. But why should this be so? Nothing in the Constitution’s text says that.

2. Would your approach make any difference? In states that require whole record review of capital cases bu the state Supreme Court, state Supreme Court opinions typically discuss a specific list of legal issues as is typical in other cases, and then add the boilerplate “In addition, we have reviewed the entire record of the case and find no other issues of error requiring our consideration” or similar language. If you are right, why couldn’t the Supreme do exactly the same thing?

I acknowledge there will be occassional cases where after reviewing the whole record issues other than the ones it initially focused on will turn out to make a difference. I also acknowledge there will be cases where parties will be able to argue that the real issues in the case are not what the Justices initially thought they were. I’m not saying it would make no difference at all. But is this likely to have anything like the major practical impact you have been advertising? Will it make the court less political? Will it lead to any dramatic practical change?

I don’t think so. The Justices will likely focus on the issues that led them to take the case as before. While they could occassionally be persuaded the real issues of the case are otherwise, these instances will probably be rare (just as whole record review affecting the outcomes of capital cases is rare). And to the extent you are arguing that the Justices should simply hear the case with no advance agenda, if the Justices don’t tell the parties what caused them to take up the case in advance and what issues are most on their minds, the parties will simply be worse off than at present. I don’t see how giving the parties less information improves anything. Without knowing what issues are most on the Justices’ minds, counsel will be less able to advance their clients’ interests.

Bottom line, so long as the Supreme Court’s appelate authoroty is discretionary, it will only take cases that address legal issues it regards as salient, and it will tend to focus on those issues in its review. And to have a single Supreme Court for a litigious country of hundreds of millions, there is no way to avoid making appelate review discretionary. It is the discretionary nature of review itself, not the formal process, thst drives the court to accept only cases raising legal issues it considers salient. Eliminating an advance statement of review questions, adding boilerplate whole record review language to every opinion, may change the occassional case outcome but won’t change this fundamental fact, and hence won’t have much impact. And leaving the parties in the dark about why the court took the case won’t help the parties or serve the court.

[Noscitur a sociis]

1. What is the source of authority for your claim that the Supreme Court must follow the rules of the common law writ of error? Why shoukd this be so? Why can’t Congress depart from the common law by statute? Why can’t the Supreme Court change the common law under its supervisory authority? The common law has been departed from and changed in this country many times. The constitution merely gives the Supreme Court appelate authority. Their doesn’t seem to be any specific requirement as to how that authority will be exercised. And what the Supreme Court is currently doing is a kind of appelate authority. You seem to be arguing that the Constitution implicitly requires the specific kind of appelate procedure that English common-law courts exercized. But why should this be so? Nothing in the Constitution’s text says that.

I don't think that Prof. Johnson would dispute that Congress could authorize the supreme court to exercise its certiorari power the way it does: his argument is that Congress hasn't done that, and that the statutes passed by Congress actually require the court to review entire cases. And its precisely because that requirement is in a statute that the court can't use its common law authority to modify it.

[ReaderY]

Also, are parties currently actually limited to the questions presented? Dobbs seems a good current example. The question presented was narrow, whether all pre-viability restrictions on elective abortions are unconstitutional. But Mississippi proceeded to brief the much broader question of whether Row and Casey should be entirely reversed entirely. It doesn’t look like the question presented is an actual limit. A party doubtless takes a risk by arguing outside the questions presented. But knowing what questions were on the Court’s mind when it took the case enables it to calculate the risk. Without knowing them, it will just be stumbling blindly.

[Bored Lawyer]

I am not understanding something. Does the fact that review was granted on the whole case mean that appellate courts and Supreme Court had to consider every issue raised below?

It is commonplace today for courts (whether trial courts or appeal courts) to decide only what is needed to determine the case. If the appellant claims the district court committed three errors, and the appeals court can affirm or reverse by reviewing only one, it will do so. Was that not the practice in the 18th and 19th centuries?

[Bored Lawyer]

In fact, in Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998), SCOTUS ruled that questions of subject matter jurisdiction must always be decided first, and if lacking, the district court may not proceed to any other issue. Even if those other issues are easier to rule upon.

[Noscitur a sociis]

Does the fact that review was granted on the whole case mean that appellate courts and Supreme Court had to consider every issue raised below?

I don't think so. The appellant/petitioner typically had to include a "bill of exceptions" listing the errors they wanted to have reviewed and there were still the reviews of forfeiture and waiver. And of course if the court found one reason to reverse it wouldn't necessarily after the consider the other grounds. As I understand the article, the two differences would be:

1. After granting certiorari, the Supreme Court would have to consider and reject all properly-preserved grounds for reversal before affirming and

2. The Supreme Court would have some measure of discretion to reverse for reasons not presented in the petition.

At least, I think that's the case - I would have appreciated some additional clarification on this point in the article.

[CJColucci]

Don't the parties have something to do with all this? Don't they determine, at least in the first instance, what they think the court below got wrong and what errors they care about?

[Noscitur a sociis]

Correct: Prof. Johnson's objection is that the Supreme Court gives itself permission to consider only a subset of those questions rather than all or none of them, which is what he feels the statute requires.