Upon Further Review

In sports, from time to time, an underdog will defeat a team that was heavily favored to win. As the saying goes, "It’s why they play the game." If the favorite always defeated the underdog, there would be little reason to have the game occur on the field, the hardwood floor or the ice.

Similarly, on occasion, the outcome of an appeal will differ from what most would have predicted in advance. Only months ago, many were very surprised when Chief Justice John G. Roberts Jr. joined with the four more liberal members of the U.S. Supreme Court to uphold the constitutionality of the Affordable Care Act, colloquially known as Obamacare. And early this year, the news media and court observers viewed it as noteworthy when Pennsylvania Chief Justice Ronald D. Castille, a Republican, joined with the three Democratic members of the Supreme Court of Pennsylvania to invalidate Pennsylvania’s legislative redistricting maps.

With regard to the U.S. Supreme Court’s ruling in the Obamacare case, observers had expected that if the legislation were to be upheld, it would be thanks to the vote of Justice Anthony M. Kennedy, a usually conservative judge who nevertheless often serves as a swing vote in support of the liberal side of the court in 5-to-4 rulings. Some observers further thought that Roberts might also vote to uphold the law, simply (if nothing else) to ensure that the judgment upholding the law’s constitutionality was the result of a 6-to-3 vote rather than by the narrowest margin possible.

Thus, when the U.S. Supreme Court’s decision in the Obamacare case issued on the final day of the court’s last term in late June, it was not so much the outcome of the case rather than the margin of the vote and the composition of the majority that took court watchers by such great surprise. In particular, news media present for the opinion’s announcement reported that Kennedy delivered from the bench a scathing critique of the chief justice’s decision to uphold the constitutionality of the health care law’s most controversial mandatory coverage provisions.

With the start of the U.S. Supreme Court’s next term less than a month away, and given the typically controversial cases (including a challenge to a state university’s use of affirmative action in college admissions) now pending before the court, it is difficult to imagine that any recriminations left over from last term will linger long into the future. Rather, it is just as likely that soon the court’s more conservative justices will be back to expressing their sincere disappointment with outcomes supported by the more liberal justices in support of which Kennedy has cast the deciding vote.

Similarly, in just a couple of days from now, Pennsylvania’s highest court will consider a second round of redistricting challenges and a perhaps even more controversial challenge to the commonwealth’s new voter identification law. Unlike in January, however, when the Supreme Court of Pennsylvania issued its previous redistricting ruling, now that court has only six justices who will participate in these decisions, because Justice Joan Orie Melvin remains suspended while fighting criminal charges against her.

The six Pennsylvania justices who will participate in ruling on the cases to be argued this week are evenly divided between Democrats and Republicans, and thus if the justices were to vote along party lines in these politically charged cases, the result will be that the decisions being challenged on appeal will be affirmed by an equally divided court. At the same time, the pressure for the court to reach an outcome that actually commands a majority of the justices may be stronger than ever, as an evenly divided vote might send the message that the court is now paralyzed along party lines in these politically charged cases in the absence of a decisive seventh vote.

The types of unpredictability that sometimes manifest themselves in the outcome of an appeal or in the outcome of a sporting event have similar explanations: Anyone can win until the game is over. Appellate judges are expected to keep an open mind about a case until the case has been fully briefed and argued and the judges discuss the resolution of the case amongst themselves, orally and then in writing. Consequently, the outcome that a judge ends up voting in favor of will not always be the one that outside observers might have expected in advance.

Unlike the typical politician, judges do not have constituencies. Rather, judges swear their allegiance to the law, and their task is to work to achieve the result in each case that the law demands. Judges also may appropriately be mindful of the consequences of their ruling, and whether a particular ruling seems consistent with the result that common sense would dictate. In recently voting against type in high profile cases, Roberts and Castille have been lauded by many for acting to uphold the integrity of the judicial branch of government. That, too, is an appropriate consideration in cases in which the result could permissibly come out either way.

Moreover, as in an actual sporting event, sometimes the performance of the contestants can cause the outcome of an appeal to differ from what outside observers may have anticipated. A party may not have set forth its strongest arguments in the most effective way possible, or a party may have waived or abandoned arguments that would have altered the outcome if only those arguments had been preserved. Also, sometimes a bad performance at an appellate oral argument can manage to snatch defeat from the jaws of victory, notwithstanding that in the vast majority of cases judges say oral argument has little impact on the outcome of an appeal.

Even Justice Antonin Scalia, in his new book Reading Law: The Interpretation of Legal Texts, admits that his previous rulings on the U.S. Supreme Court may not have been entirely consistent with the principles of judicial decision-making that he is now espousing. Scalia further explains that his decisions in the future likewise may not always be 100 percent consistent with his current theories of the proper judicial approach.

And thus this is why we play the game, both on the field for sporting events and in the courtroom for appellate litigation. Although we may think that the outcome of a contest can be predicted in advance, in truth one never knows what the outcome will be until the buzzer sounds and the contest has concluded.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., and can be reached by telephone at 215-830-1458 and via email at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com.