UPDATE ON APPELLATE DEVELOPMENTS

(Posted December 7, 2023) Most Americans associate today with the attack on Pearl Harbor that ushered the nation into World War II. I mark it for a different reason, and today is an especially important iteration: It’s the sesquicentennial of the birth of my most famous relative, author Willa Cather. She was a native Virginian, born in Frederick County, just north of Winchester in a settlement that was called Back Creek then; it’s now known as Gore. Her family moved to Nebraska when she was a child, and that’s the formative environment for her most enduring fiction.

I’ve learned that a foundation in Nebraska has set aside 600 acres of grassland and named it the Willa Cather Memorial Prairie, a few miles south of her long-ago home in Red Cloud. That site is on my list of must-visit places, to honor my third cousin (twice removed), and to see the land as she did.

The opinion well at Ninth and Franklin is dry again today, so let’s explore some current appellate matters.

A quick count on SCV opinions

With today’s shutout, there are presumably just three more potential opinion days in 2023. I should have been patient and waited for the final numbers to roll in, but curiosity got the better of me, so I decided to review what’s come down thus far; it’ll be easy to update this in early January. If you make your living in the Supreme Court of Virginia, I’ll warn you that what follows is not pretty.

With roughly 16/17ths of the year in the books, the SCV has released 24 published rulings and two unpubs. When I began to publish this website almost 19 years ago, a total of 24 published decisions was roughly what I could expect on each of the court’s six opinion days each year. If the caseload in those days had been as sparse as the current docket, I may not have decided to launch this site.

Only five of the decisions came down to a split vote, with one or more justices dissenting; the other 19 were unanimous. Three of the published decisions are orders, and that means that we can’t know who the authors were. For the remaining 21, here are a few interesting tidbits:

The most frequent dissenting voter, with three, is the chief justice. In marked contrast, Justice McCullough has a perfect voting record, casting his lot with the majority in every decision.

As of tomorrow, we will have gone half a year since the last dissent (City of Hampton v. Williamson). Since then, the court has handed down nine straight unanimous decisions. I counted just eleven dissenting votes all year. We’ve seen two 4-3 outcomes, two more that ended 5-2, and a single 6-1 decision.

The court’s most prolific writer is Justice Kelsey (six opinions of the court and one dissent), followed closely by Justices Russell (five and one), McCullough (five and zero), and Powell (four and zero). At the other end of the spectrum are the chief (one dissent) and Justice Chafin (one opinion of the court). It’s possible – indeed, highly likely – that each of these two received an assignment for an opinion that turned into one of the court’s three unpubs.

Business is down across the Potomac, too

Throughout the year, I’ve bemoaned the paucity of merits cases in the SCV. The court concluded its six 2023 sessions having heard oral argument in just 28 cases. But the decline was foreseeable after the passage of Senate Bill 1261 two years ago, and I expect – not without a dollop of nervous worry – an uptick next year.

The merits caseload of Those Other Robes is way down, too. SCOTUS convenes seven times a year in what that Court calls sittings. We call them sessions here on the correct side of the river, but I won’t fuss over a minor difference like that. The docket for the fourth sitting of OT ’23 is out, and when you add together the arguments on the first four, it only comes to 29. (When appeals are consolidated for argument, I’ve counted that as a single argument.) Ten years ago, the first four sittings of OT ’13 saw 46 oral arguments.

If you’re starting to see a troubling trend here, join the guild. I occasionally receive questions about what’s behind the years-long decline in appellate business. My semi-informed speculation – though it’s still speculation – includes things like the cost of appealing and the rise of ADR. It once included the dauntingly low writ-grant rate in the Supreme Court of Virginia, but now every appellant gets one round of merits review, so that’s probably no longer a major factor.

Perhaps appeals are becoming obsolete, like pocket calculators, classified ads, and handwritten letters. This is fair warning for those of you who are looking to break into the appellate field. We in the guild will welcome you – it’s extraordinarily collegial here – but I can’t promise you a ton of business, at least to start.

When good things happen to good people

I read yesterday that Vice President Harris has now cast more tiebreaking votes in the US Senate than any previous VP, surpassing a record set by John C. Calhoun back in the JQ Adams and Jackson Administrations. She received a small ceremonial gavel as a memento.

But the news for us is what she cast that tiebreaking vote for: the nomination of D.C. Court of Appeals Judge Loren AliKhan to a seat on the US District Court. Before she became a learned appellate jurist, Judge AliKhan was an appellate lawyer, and a terrific one at that; she served for a time as the Solicitor General for the District of Columbia. You may have seen her at one of the Virginia Appellate Summits. She now leaves the world of appeals for a trial bench, but who knows? At just 40 years old, she may have a future on a higher court.

The only troubling part of this story is that a tiebreaking vote was necessary. Judge AliKhan is plainly qualified to be a district judge. From what I can see, opposition to her in the Senate – every Republican, plus Democratic Senator Joe Manchin of West Virginia – arose from pure politics and had nothing to do with her qualifications.

The particularly concerning aspect is that her opponents cited some of the positions she took in litigating cases, a patently improper consideration if we’re to have a functioning legal system. After all, lawyers have to be free to represent clients and causes without personal cost. But that’s the environment we occupy now. The days of 96-3 Senate confirmations – that was the vote in 1993 to confirm Ruth Bader Ginsburg to a SCOTUS seat – appear to be over, replaced by a chamber where each senator is expected by his or her party’s leadership to oppose the other party’s nominees, no questions asked.