MORE AND MORE APPEALS

Many Supreme Court cases matter greatly.  Some matter to most of us (what students can or cannot say in school under the First Amendment, the right to remain silent in the face of police inquiry, how much of your car a policeman can search after a traffic stop, and so on and so forth), while some matter mostly to businesses (like cases involving patents or
corporate taxes, for instance) or even to only some businesses (I am thinking on cases about oil royalties or accidents on the high seas).

Other cases tend to matter less, to anyone.  The jurisprudence on admission of evidence, especially expert testimony and the recorded testimony of unavailable witnesses, is so muddled that many judges, guessing by the few that have said so out loud, rely as much on common sense as anything.  And they hold fair trials doing so, by and large, where junk science stays out and expert testimony stays in.

And yet other Supreme Court cases have the effect of generating ever more appeals.  Congress had once enacted mandatory sentencing guidelines.  The Supreme Court then ruled that their mandatory character violated the constitutional principle of separation of power, because the judiciary was traditionally charged with sentencing.
Congress could – and did – keep sentencing guidelines, but they were no longer  mandatory.

The result is that judges occasionally depart from the guidelines, either up or down, based
on their notion of what is just in each case.  But when that happens, it can also become one more ground for appeal.  We have to accept that mandatory guidelines in federal criminal cases are contrary to the Constitution; and many did not like them to start with because of the system’s rigidity.  On the flip side of that coin, removing that layer of certainty also increased the amount of litigation.

Another moral to that story is to make sure your attorney knows and remains current in his or her knowledge of the law, else you may miss a ground for appeals.