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The Standard (of Review) in Judge Noonan's Judging

Published online by Cambridge University Press:  24 April 2015

Patrick M. Brennan
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Extract

It is the business of the human soul to impose her own order upon the clamorous rout; to establish a hierarchy appropriate to the demands of her own nature, and by the mere fiat of her absolute choice, if that be based upon self-knowledge.

—Judge Learned Hand

“Where is the standard of review in Judge Noonan's opinion?” The question has been posed—I am confident—more than once. I first heard it when I clerked for Judge Noonan, from a friend clerking elsewhere on the Ninth Circuit. My friend wanted to know by what standard of review Judge Noonan had reached his result. “It's not there,” I replied, “and come to think of it, it never is.” “Well,” retorted my friend, “how can that be? In our chambers, the standard of review decides the case.”

That little exchange (which is not apocryphal) rendered me speechless and thus got me thinking about the fetters that bind judges. While I disdained such a facile incantation—indeed, caricature—of the judicial “can't,” I accepted that while appellate courts rarely stand on the shoulders of giants, they do not sit as though the trial court (or agency) never rendered a decision. If appellate courts are not to be second trial courts, there must be some deference to the earlier proceeding, and that might usefully be designated the standard of review.

Type
In Honor of John T. Noonan, Jr. Journal of Law and Religion Achievement Award
Information
Journal of Law and Religion , Volume 12 , Issue 2 , 1995 , pp. 553 - 564
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1995

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References

1. Address To the Harvard Alumni Association at the Harvard Commencement, June 18, 1936, reprinted in Dillard, I., ed, The Spirit of Liberty: Papers and Addresses of Learned Hand 111, 113 (Knopf, 3d ed, 1963)Google Scholar.

2. The fiction that the fine judge who employed my smart friend properly surrendered his docket to an external standard for “decision.” See Cover, Robert, Justice Accused: Antislavery and the Judicial Process 119–29 (Yale U Press, 1975)Google Scholar.

3. See, for example, Marbury v Madison, 5 US (1 Cranch) 137, 175 (1803) (Marshall) (“It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.”).

4. Posner, Richard A., The Federal Courts: Challenge and Reform 176 (Harvard U Press, 1996)Google Scholar.

5. Comments by Nelson, Judge Dorothy W. at Conference on Empirical Research in Judicial Administration, 21 Ariz St L J 33, 145 (1989)Google Scholar. That comment was made the better part of a decade ago. Meanwhile Judge Nelson has death-defyingly continued punctuating her opinions with standards of review.

The Ninth Circuit's standards of review are summarized, in service of an analysis of how successfully they serve the Circuit's administrative goals, in Maurice Rosenberg, Standards of Review, in Hellman, Arthur D., ed, Restructuring Justice: The Innovations of the Ninth Circuit and the Future of the Federal Courts 30–54 (Cornell U Press, 1990)Google Scholar.

6. Ninth Circuit Rule 28-2.5. The Seven Sins of Appellate Brief Writing and Other Transgressions, 34 Ucla L Rev 431, 437 (1986)Google Scholar.

7. See, for example, Amadeo v Zant, 486 US 214, 223 (1988) (Marshall) (“The Court of Appeals never identified the standard of review that it applied to the District Court's findings.”).

8. I was wrong that it never appears. See, for example, United States v Takai, 941 F2d 738, 742 (9th Cir 1991). Judge Noonan regularly pays close attention to the language of a standard of review when called upon to perform “harmless error analysis”—a kind of review increasingly required by Supreme Court precedent. See, for example, Hardnett v Marshall, 24 F3d 875, 879-81 (9th Cir 1994), cert denied, S Ct 942 (1995).

9. For example, Federal Rule of Civil Procedure 52(a); Pullman-Standard v Swint, 457 US 273 (1982); Chevron USA, Inc. v Natural Defenses Research Council, Inc., 467 US 837 (1984).

10. Noonan, John T. Jr., Persons and Masks of the Law 142 (Farrar, Straus and Giroux, 1976)Google Scholar (noting that that shift would have caused him to diverge from Cardozo in disposing of the Palsgraf case).

11. That warm baths, too, may have something to do with it is probable, but that connection, I suspect, the management would prefer that I not pursue.

12. For a marvelous example of Judge Noonan's careful and sensitive attention to the facts and their nuance, see United States v Marsh, 26 F3d 1496, 1504-08 (9th Cir 1994) (Noonan concurring). See also Early v Texaco Refining and Marketing, Inc., 951 F2d 1059, 1061-62 (9th Cir 1991) (reviewing a long series of complaints received by Texaco, and concluding that the district court could not have held the complaints “not ‘bona fide’” as a matter of law).

13. In connection with Forrester v City of San Diego, 25 F3d 804 (9th Cir 1994), cert denied, 115 S Ct 1104 (1995), a case in which Judge Noonan was not a panel member.

14. Pacific Northwest Generating Co-op v Brown, 38 F3d 1058 (9th Cir 1994).

15. American Fed. of Gov. Emp. v Roberts, 9 F3d 1464 (9th Cir 1993) (prison conditions); Jeffers v Lewis, 38 F3d 411, 425-28 (9th Cir 1994) (Noonan dissenting), cert denied, 115 S Ct 1709 (1995).

16. United States v Carpenter's Goldfish Farm, 998 F2d 692, 695 (9th Cir 1993).

17. United States v Martinez, 883 F2d 750, 753 (9th Cir 1989), vacated on other grounds, 928 F2d 1470 (9th Cir 1991) (per curiam).

18. See, for example, Fallon, Richard Jr., Daniel Meltzer and David Shapiro, eds, Hart and Wechsler's The Federal Courts and the Federal System 596–97 (Foundation Press, 4th ed, 1996)Google Scholar; Eskridge, William and Frickey, Philip, eds, Hart and Sacks, The Legal Process 344–62 (especially 350–51) (Foundation Press, 1994)Google Scholar.

19. United States Dept. of Interior, Bur. of Ind. Aff. v FLRA, 887 F2d 172, 176 (9th Cir 1989).

20. Compare Clark v Washington Teamsters Welfare Trust, 8 F3d 1429, 1432 (9th Cir 1993) (reversing summary judgment for trust beneficiary on the ground that “we cannot [as federal judges] substitute our discretion for the faithful exercise of discretion by those entrusted with those tasks” even where a “close question” is at issue).

21. United States v Mathews, 36 F3d 821 (9th Cir 1994).

22. Mathews was convicted on six counts having to do, roughly, with bombs and interstate commerce.

23. Federal Express Corp. v California Public Utilities Corp., 936 F2d 1075 (9th Cir 1991), cert denied, 504 US 979 (1992).

24. Id at 1078.

25. Id at 1081 n 6.

26. Id at 1078.

27. Id at 1079, quoting 49 USC App § 1302(a)(5), (b)(1),(b)(2).

28. Id at 1079.

29. Id at 1081 n 6.

30. 378 US 184, 197 (1964) (Stewart concurring).

31. Except, of course, that Justice Stewart probably imagined that the solution was in literally “seeing” (as a metaphor for understanding generally), not in seeing, understanding and then judging (deciding). Gewirtz, Compare Paul, On ‘I Know It When I See It,’ 105 Yale L J 1023, espec 1038 (1996)CrossRefGoogle Scholar.

32. Compare Holmes, Oliver Wendell Jr., The Path of the Law, 10 Harv L Rev 457, 465–66 (1897)Google Scholar (“The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and repose which is in every human mind. But certainty generally is an illusion, and repose is not the destiny of man. Behind the logical forms lies a judgment …”).

33. Speaking “informally” at UVA in 1953 about the six (sic) Chief Justices he had known. See note 34 below.

34. Frankfurter, Felix, Chief Justices I Have Known, 39 U Va L Rev 883, 905 (1953)Google Scholar. Judge Posner captures the process this way: “The established approach in this country requires judges (rightly, as we are about to see) to decide even the most difficult cases as best they can, provided the cases are real cases and within the judges' jurisdiction.” Posner, Richard, The Problems of Jurisprudence 232 (Harvard U Press, 1990)Google Scholar. Judge Posner cites Justice Frankfurter's concurrence in Joint Anti-Fascist Refugee Comm. v McGrath, 341 US 123, 171-72 (1951), however, as an example of judicial style that “suggests a dogmatic rather than an inquiring mind.” Id at 97-98 n 47.

35. Compare Childress, Steven and Davis, Martha, Federal Standards of Review 1–3Butterworth, 2nd ed, 1992)Google Scholar: “At its clearest level, a standard of review prescribes the degree of deference given by the reviewing court.… Alternatively, from an angle of empowerment, a review standard describes the positive authority the appellate court wields in its review function.” To be sure, there are other reasons, such as efficiency, that bear on which standards of review to apply. See Posner, , The Federal Courts at 176–77Google Scholar (cited in note 4). Nonetheless, there is an epistemological floor; for example, appellate courts, functioning as such, cannot perform truly de novo review of facts.

36. “[T]he law, at its best, is an operating model of the only kinds of reasoning that are of much use in the ‘realm of human affairs.’” Glendon, Mary Ann, Knowledge Makes a Noisy Entrance in Lawrence, F., ed, 10 Longeron Workshop 119, 143 (1994)Google Scholar.

37. But see Federal Appellate Practice Guide Ninth Circuit 4–1 (Lawyers Coop. Publishing, 1994)Google Scholar: “The standard of review provides the perspective within which the Court of Appeals reviews the lower courts' decisions. It often determines the outcome of the appeal.”

38. Noonan, , Persons and Masks of the Law at 41 (cited in note 10)Google Scholar.

39. Compare Childress, and Davis, , Federal Standards of Review at 1–14 (cited in note 35)Google Scholar (citations omitted): “It would defy linguistics or common sense to impart to language some natural meaning inside the words or to think that standards of review themselves—in bare wording-determine an appeal.”

40. Brecht v Abrahamson, 507 US 619, 643 (1993) (Stevens concurring).

41. Thus, while I appreciate that “[t]here is no guarantee of justice except the personality of the judge” (Erlich, , Freedom of Decision, 9 Modern Legal Philosophy Series 65 (1917)Google Scholar), and that “[t]he quality of our judges is the quality of our justice.…” (Leflar, Robert, The Quality of Judges 35 Ind L J 289, 305 (1960)Google Scholar), I suggest that the emphasis should shift from the personality of the judge to the understanding of the judge, where understanding is recognized to be the product of a person's being actively attentive (to data), intelligent (in interpreting data), reasonable (in choosing an interpretation of the data). See Patrick Brennan, Discovering the Archimedean Element in (Judicial) Judgment, Law and Philosophy (forthcoming).

42. Cardozo's theory sometimes fell short of his practice: “We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own. To that test they are all brought.…” Cardozo, Benjamin, The Nature of the Judicial Process 13 (Yale U Press, 1921)Google Scholar. The ocular image eclipses the moment and burden of choice and judgment.