Introduction
Something seems to be out of whack in the federal appellate system. Extremely consequential questions of national policy on matters like immigration and abortion are being decided through emergency motions on the Supreme Court’s “shadow docket.”
In other instances, the Court has added cases to its regular docket through the formerly rare mechanism of “certiorari before judgment,” in which the Court takes a case straight from a district court, skipping over the court of appeals.
The mechanism of certiorari before judgment has been used more than twenty times in the last few years after being used only a few times in the preceding three decades.
These changes in the Court’s practices are partly the product of changes in the behavior of the lower courts, particularly the proliferation of nationwide injunctions through which district judges set aside national policies for everyone everywhere all at once. Leaders in the Biden Department of Justice, like those in the Trump Administration before them, have criticized these district judges for overstepping the proper role of a trial court.
Joining the chorus, Justice Elena Kagan said in a public appearance that “[i]t just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process.”
Yet while one criticism is that district courts are acting too much like national policy setters, thereby mucking up the normal appellate process, another criticism is that the Supreme Court is acting too much like a trial court. In April 2021, a United States Senate committee held a hearing on “Supreme Court Fact-Finding and the Distortion of American Democracy.”
Senator Sheldon Whitehouse, the hearing’s organizer, led off with a fiery statement in which he condemned the Supreme Court’s handling of facts in several high-profile cases, particularly the Shelby County decision limiting the Voting Rights Act and the campaign-finance blockbuster Citizens United.
According to Senator Whitehouse, the outcomes in those cases turned on factual findings about matters such as whether the expenditures at issue in Citizens United posed a risk of corruption and, in Shelby County, whether conditions in the South and other jurisdictions had changed such that the Voting Rights Act’s preclearance rules were no longer needed.
Not only were the Court’s conclusions on those points “provably wrong,”
but, Senator Whitehouse said, the Court had overstepped its proper appellate role in making factual findings in the course of reaching its decisions.
Evaluating whether things are amiss at either the top or the bottom of the appellate hierarchy requires a conception of the proper roles of different courts. Like many others, Senator Whitehouse refers to the proper role of appellate courts and their relationship to trial courts as if the roles were obvious. But we can improve our understanding of current happenings, and the range of potential responses to them, if we expand our view and question some assumptions about the “proper” or “traditional” appellate function. That is not because history should necessarily confine us; it might instead broaden our horizons.
This Article engages in such an investigation of the history of appellate procedure. Things are more complicated than one might guess from facile invocations of the appellate role. If one looks into the past, one finds two very different traditions of appellate review, one from the common law and one from equity. The distinction between law and equity is well known when it comes to trial litigation: The common law had juries and damages, while equity had the chancellor and injunctions.
But we used to have two separate systems for appellate review too.
At common law, after the jury found the facts, the court entered a final judgment upon them, and then (and only then) the higher court reviewed the record for errors of law, using the writ of error.
In the other tradition, that of equity, an appeal was a rehearing of the law and the facts aimed at achieving justice, and the appeal did not need to wait until a final judgment.
One of our best early jurists, Justice James Wilson, concluded that the Constitution entrenched these divergent practices, such that the Supreme Court was required to engage in a wide and deep review of the facts in equity cases.
Wilson was in the minority,
but the dispute should warn us away from easy invocations of the traditional appellate role.
Widening the lens beyond appeals for a moment, an important recent development is the revival of interest in the doctrines and practices traditionally associated with courts of equity. For the most part, the interest has centered on certain bodies of substantive law associated with equity (e.g., the law of fiduciaries)
or remedies characteristic of equity.
There also has been some interest in expanding the reach of, or at least recovering the memory of, certain aspects of equity’s characteristic trial procedure. For example, Professor Samuel Bray has argued for a new interpretation of the Seventh Amendment jury right that would take some categories of litigation away from juries because the cases were traditionally part of equity’s jury-free jurisdiction.
Professor Amalia Kessler has argued that many of the ills of our current system of civil justice result from the thoughtless mixture of equitable tools like liberal discovery and joinder on the one hand with the adversarial, party-driven model of the common law on the other.
Improvements could come, she argues, from reviving some of the quasi-inquisitorial, court-controlled features of the equity model.
In the Supreme Court, the interest in equity has mostly concerned remedies, with some Justices deploying a form of “equity originalism” that in practice has served to restrict injunctive remedies in public-law cases on the ground that they lack a footing in Founding-era English practice.
Other Justices have argued for a more “dynamic” approach to injunctive remedies, drawing on the remedial flexibility associated with equity.
Neglected so far in the new debates over old equity is the role that the equity tradition might play in advancing our understanding of modern appellate procedure and, possibly, improving that system’s workings. It is time that the revival of equity enriched the law of appellate procedure.
In an effort to advance our understanding, Part I of the Article reveals the origins of modern federal appellate procedure and the choices that shaped it. When it comes to trial procedure, it is routine to speak of the Federal Rules of Civil Procedure of 1938 as merging law and equity, with equity prevailing.
When it comes to appeals, the story is less known and more complicated. There is no equivalent to the civil rules’ epoch-marking opening declaration that the new rules “govern . . . all suits of a civil nature whether [formerly] cognizable as cases at law or in equity.”
Instead, through a series of decisions spread across two centuries, a blended appellate system has emerged: one that partly follows the model of the common law but in some ways retains the spirit and forms of the equitable appeal. There is a certain functional logic to the mixture, albeit with some path dependency thrown in too.
Having illuminated the current system’s blended character in Part I, the Article proceeds in Part II to show that an appreciation of equity’s appellate system can explain some current pressures in the judicial system, shed light on novel proposals, and suggest some potential improvements. Calls for more opportunities for interlocutory appeal, for example, reflect the logic of equity reasserting itself in a respect in which the common law submerged it.
And the federal courts would likely benefit from such reemergence in other aspects of their procedure too, such as through more searching appellate review of high-stakes decisions like national injunctions.
To be very clear, however, Part II does not call for resurrecting the bifurcated appellate procedure of ages past. Many old practices and distinctions have been abolished for good reason.
Bleak House, with its interminable, ruinous Chancery case of Jarndyce v. Jarndyce, is not a how-to guide for legal reformers.
Nonetheless, there are some circumstances in which the equitable model of appeal—review of the facts, reweighing of the equities, tolerance of interlocutory appeals, an orientation toward concluding a matter with full justice—still makes sense today. That is, there are good functional reasons for nonantiquarians to appreciate aspects of the equitable model of appeal. One way of using history is to fix meaning or close off possibilities, but in this instance history instead illustrates the range of possibilities open before us.