Appellate Judges and Justices

Cite this article as: Jason Mance Gordon, "Appellate Judges and Justices," in The Business Professor, updated January 3, 2015, last accessed April 9, 2020,
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Duties of Appellate Judge
What are the Duties of Appellate Judges? Review whether law was applied correctly and whether it is Constitutional.

Next Article: Right to Jury Trial – 6th and 7th Amendments


What are the duties of appellate court judges or justices?

The duties of an appellate court judge are distinct from those of a trial judge. Specifically, the appellate court serves as legal reviewer of trial court decisions. It does not generally make determinations about the facts of the case, except in special circumstances (known as “de novo review”); rather, the court reviews the case based on the facts as found by the trial court and present in the trial record. That is, the appellate court accepts the jury’s findings of fact as true. As an example, if the jury finds that an individual was driving the car that hit the plaintiff, the appellate court must assume that is true. The appellate court judges review the case for legal inadequacy and serve the following functions.

Application of the Law (Procedural and Substantive)

In reviewing a case, the appellate judges determine if the law was applied correctly to the case. This process includes reviewing the application of procedural and substantive law. If the procedural law is found to have been applied incorrectly, the judges look to determine if the error was prejudicial to the losing party. If so, the case may be overturned in whole or in part and remanded to the trial court for further proceedings. If the substantive law is applied incorrectly, the case is generally overturned and remanded. The court’s determination of whether the substantive law was applied correctly is generally based on the plain meaning of the statute and legislative intent in passing the statute. In making this assessment, the appellate judge will look at the legislative notes, prior appellate court opinions, or other indications of how and why the legislature passed the law. If the law, as applied, does not comply with the legislature’s intent, the appellate court has the ability to overturn the decision (verdict) and remand the case for re-trial. The court may overturn the entire case or just the charge or cause of action negatively affected by the erroneous application of law.

Discussion: Do you think a procedural error justifies overturning a case? How prejudicial do you believe a procedural error must be to justify overturning the case? Do you think that overturning part of a jury finding and upholding another part is fair and just? Should the case always be overturned in the event of a substantive error? Do you feel that the entire case should be overturned if the court finds a substantive error?

Discussion Input

  • Some people would argue that a procedural error should never be grounds for overturning a trial court decision. Others would agree that it should only be grounds for overturning the trial court’s decision if it is prejudicial to one of the parties. Whether overturning part or all of the decision is, yet again, a matter of opinion. Some might say that an error in one part spoils the entire decision. Others would agree that dissecting the court’s decision and upholding the portion unrelated to the procedural error is appropriate. Substantive errors generally draw more consensus in support of overturning the case. It’s likely more people would opine that overturning the entire case is appropriate in such a scenario, as the error of substantive law is far more likely to sway the jury’s verdict and findings.

Practice Question: Lisa is a superior court judge in Alabama. In a criminal trial, the Defendant request for a trial by judge alone and agrees to forego his right to a jury trial. Lisa is concerned that serving as fact-finder in the case would cause issues for appeal and denies the Defendant’s request. During the criminal trial, defense counsel makes a motion to exclude from evidence a confession signed by the defendant. Lisa overrules the motion and allows introduction of the confession to the jury at trial. At the end of presentation of evidence, Lisa rejects defense counsel’s proposed jury instruction and delivers to the jury her own explanation of the substantive law to be applied in the case. On appeal, what legal issues will the appellate court review in this situation?

Proposed Answer

  • The appellate court will review the record for procedural and substantive errors. Generally, as procedural error will only affect the decision if prejudicial to the defendant. In this case, allowing the jury to hear a confession that should be excluded on constitutional grounds would be highly prejudicial. Rejecting the defendant’s request for a trial by judge alone is likely not a procedural error, unless the local rules of evidence grant the defendant that right. The appellate court would also review the jury instruction to determine if there was a substantive error in the manner in which the law was explained to jury. An incorrect explanation would certain by prejudicial and result in the case being overturned and remanded.

Constitutionality of the Law

Appellate judges are responsible for determining whether the law or government action, as applied, is consistent with and does not violate the Constitution. That is, they are charged with the power of interpreting laws and determining if the law is unconstitutional. Any law or government action that violates the constitutional rights of an individual is void and unenforceable. Additionally, if the law in question violates a superior law it will receive a limiting interpretation or be overturned entirely. Appellate judges’ power to overturn the law is a critical piece of the checks and balances system. As a result, the legislators who passed the law must start over if they wish to pass another law to achieve their intended purpose.

Discussion: What do you think of the role of the Supreme Court in reviewing the major cases and determining whether the law involved is constitutional. For example, consider The Affordable Care Act, Same-Sex marriage, Immigration Laws, Marijuana laws, etc. What has been or will be the role of the US Supreme Court in evaluating this law?

Discussion Input

  • This discussion goes back to one’s view on the role of the court in shaping the law. A judicial activist would say that the role of the court is to step in an interpret these matters in light of public sentiment. Someone who believes in judicial restraint would say that these matters should be addressed by the legislature and not the courts.

Practice Question: The US Congress passes a law requiring all individuals in the United States to apply for a driver’s license, regardless of whether the individual ever intends to drive a vehicle. Applying for the license takes time and costs money. Any individual who fails to apply for the license will face an income tax penalty. Proceeds from these penalties will be used to fund federal highway construction projects. Helen is not happy about the new law and files a federal court action against the director of the Federal Highway Administration (FHWA). The trial court grants summary judgment to the FWHA Commissioner; so, Helen appeals to the Circuit Court of Appeals. In this scenario, what legal issues will the appellate court review?

Proposed Answer

  • The court will review the constitutionality of the law that has been introduced. It will address the question of whether the Federal Government has the authority to mandate and individual go through the process of acquiring a driver’s license. The Federal Government’s authority is based upon the Taxing and Spending Power and the Commerce Clause. If the court rules that the Federal Government has this authority, it will apply a standard of review based upon whether a fundamental right is involved. Since that does not appear to be the case (as no enumerated right appears to be infringed, and there is no denial of due process), the court’s decision will likely stand under the minimum rationality standard of review, as the law is closely related to a legitimate government interest.

Developing the Common Law

Appellate judges render decisions when reviewing a case. Along with these decisions, the court writes an opinion on how the law was or should have been applied in the case. The appellate judge’s written opinion ultimately becomes part of the common law and serves as precedent for lower judges to apply in future cases. In this way, appellate judges are like legislators – interpreting and creating the manner in which the law should be applied.

Discussion: The power of judicial review, arguably, makes the judiciary the most powerful branch of Government. How do you feel about the ability of the judiciary to develop law through the interpretation of the law as applied in a given case? Can you think of an example where judicial review overturned a lower court’s decision?

Discussion Input

  • Some would argue that the ability of the judiciary to develop laws through interpretation of the law is to ensure that the letters and spirit of the law are upheld. This in other sense ensures that the fundamental principles of a nation are promoted. Others would argue that it usurps power that the Constitution reserves for the legislature. Two example of a case where an appellate court overturned a lower court’s decision was in the case of Lochner V. New York (1905), which was later overturned by West Coast Hotel Co. v. Parrish (1937),

Practice Question: Adam lives in rural Louisiana. One day, he navigates his small fishing boat through a series of small creeks that eventually open up to a lake. While fishing on the lake, the local game warden approaches Adam and issues him a citation. Adam is now facing charges for trespass for unlawful entrance on a state-controlled lake and illegal fishing. The citation is based upon a Louisiana statute authorizing state-controlled wildlife areas and the restriction of those areas to public use. Adam, a savvy business student, begins researching the state statute and its legal history. He finds a state appellate court opinion stating that the Louisiana statute cannot lawfully prohibit access to the water resources that are accessible by a navigable waterway. Navigable waterways are controlled by federal law, and any state law in conflict is preempted. If Adam presents this case to the trial court, would it potentially have an effect upon the outcome of the trial? Why or why not?

Proposed Answer

  • It would possibly affect the trial court’s decision. Trial courts do not generally venture into the realm of interpreting whether a statute is Constitutional. It will, however, apply the current state of the law. If Adam can present this case to the court, the court may be convinced that this is indeed the current state of the law. If so, that would serve as a defense for Adam. If the trial court is not convinced that the ruling in the case is the current state of the law, then it would likely not affect the court’s findings. It would, however, open up grounds for appeal of the trial court’s decision.

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