Rick's statement that "clearly erroneous" is "supposed to be the most deferential standard of appellate review" is, alas, clearly erroneous. In theory, that standard is supposed to be less deferential than substantial evidence review, which is the standa
rd that normally applies to judicial review of juries and administrative agencies. In part, the distinction rests on the notion that juries and agencies bring qualitatively different perspectives to the table, which the appellate review is supposed to re
spect; but in clearly erroneous review, the judges are just reviewing other judges and may legitimately be more intrusive.
Justice Breyer understands these hair-splitting theoretical distinctions very well, as they were the main subject of his opinion for the Court in Dickinson v. Zurko, 527 U.S. 150 (1999). Another thing he understands, and makes explicit in Zurko, is that
in the real world of judging, the nominal standard of review is often far less important than "case-specific factors," such as the ones he mentions in Cromartie.
Ron Levin
Ronald M. Levin
Henry Hitchcock Professor of Law
Washington University School of Law
Campus Box 1120
St. Louis, MO 63130
Ph: (314) 935-6490
Fax: (314) 935-5356
levin@wulaw.wustl.edu
"Michael E. Solimine" <Michael.Solimine@LAW.UC.EDU> 04/19/01 10:00AM >>>
To augment Rick's point, and if you will excuse the self-promotion, in an
earlier article I discussed this point as a systemic problem with Court
review of 3-judge district court decisions. (The Three-Judge District
Court in Voting Rights Litigation, 30 U. Mich.J.L.Ref. 79, 117-18 (1996)).
At least one of the original reasons for the court was that three heads
are better than one, and yet we have the Supreme Court on direct review
engaging in virtual de novo review of the facts. In yesterday's opinion
the majority pretty much admits this, observing that "in this instance
there is no intermediate court, and we are the only court of review." The
majority immediately goes on to say: "Moreover, the trial here was not
lengthy and the key evidence consisted primarily of documents and expert
testimony. Credibility evaluations played a minor role. Accordingly, we
find that an extensive review of the District Court's findings, for clear
error, is warranted."
Michael E. Solimine
Donald P. Klekamp Professor of Law
University of Cincinnati College of Law
PO Box 210040
Cincinnati, OH 45221-0040
phone: (513) 556-0102
fax: (513) 556-1236
email: Michael.Solimine@law.uc.edu
On Wed, 18 Apr 2001, Rick Hasen wrote:
I'm no fan of the Shaw line of cases, but Justice Thomas in
dissent seems surely right in saying that the majority here
is not engaging in a "clearly erroneous" analysis of the
district court decision, which is supposed to be the most
deferential standard of appellate review. Judges typically
don't (as Justice Breyer did here) take page after page
reanalyzing the facts and criticizing the district court's
findings under a clearly erroneous standard. They instead
seize on any evidence supporting the district court's
findings and affirm.
So it looks like the majority has implicitly decided that
these cases are essentially up for de novo review (the least
deferential standard of review), at least when the question
is whether race or politics predominates when the two are
intertwined.
Is this a good development from the point of view of those
who oppose Shaw? Not necessarily. The Court may now engage
in this kind of review when a three judge panel finds that
race does *not* predominate.
Moreover, the more searching review is sure to impose a
burden on the Court in the next decade, given that these
cases come up on direct review from three judge panels
without intermediate appellate courts to help.
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu