WHEELING – The great Justice Robert Jackson memorably said of the United States Supreme Court: “We are not final because we are infallible, but we are infallible only because we are final.”


Justice Jackson had a legendary legal mind and besides being quotable, his thinking informed the doctrine of “procedural due process,” which is to this day a cornerstone of individual liberty under the great Constitution of this country.


Last week, I had the privilege of appearing before West Virginia’s Supreme Court of Appeals as counsel for an intervening party in an important and contentious election case.


The petitioners in the case filed on a Monday, responses came in just three days later, and oral argument was held the next Tuesday. The court then decided the case on Wednesday.


For those who are not familiar with how appellate courts operate, that is blinding speed. Appealed cases more often take nine months to over a year to complete.  The justices and the clerk’s office made sure that all interested parties could have their say. The exigencies of the ongoing election, and the vital issue of who would be on the ballot, received emergency attention from our court, which has many hundreds of cases to deal with every term. We couldn’t ask for more from our smallest branch of government.


On Tuesday, the Court held an energetic and exciting oral argument, with questions from every justice to three different advocates.  Representatives of our two largest political parties and the Attorney General’s office participated and were questioned by the court for more than an hour.


Oral arguments like that one are a highlight of our whole judicial system – the chance for representatives of citizens and government to discuss the issues directly with the final decision makers elected to resolve these important disputes.


If you are not used to the setting, it can appear the justices are being hard on the attorneys – especially when two or three questions are asked before a chance to answer the first one is given! But the justices are not focused on the lawyers, but on the underlying legal issues and arguments the court has before it.


It’s very common for a justice to play “devil’s advocate,” asking questions that suggest a position that is not that of the justice himself or herself, but rather one that needs to be ruled out before the case can be correctly decided.


When the decision came down in favor of adding an additional candidate to the ballot, many were crowing about the court’s decision in the corridors of the Capitol, on the news, and even on social media, as though they had scored a touchdown in the big game. Sometimes, earning that “final” decision, makes litigants feel they are the ones who are infallible.


People tend to wrap themselves in the majesty of our Supreme Court of Appeals when their position prevails, even if, the week before, they were taking the Court to task for a decision they didn’t like (The West Virginia Record knows what that’s like).


Educated watchers of our court should remember Justice Jackson, and take a long and sober look at the Court’s work over time. In many cases every term, the five justices issue split decisions.


When it’s 3-2, or 4-1, at least one or two justices is “wrong” (and who’s to say it isn’t the 4 instead of the 1?). In a recent ruling, the court split 3-2 over a matter of life and death – for a dog from Bluefield named “Major.” One vote can make all the difference.


But what about the unanimous decisions, as in the recent election case? Aren’t they “smack downs,” as some observers want to call them, as they dance in a legal end-zone? Well, plenty of unanimous decisions are reversals – cases where legally-trained, experienced, elected circuit judges researched the law, reached a conclusion, wrote a detailed opinion, and found out they were wrong.


Others are reversals of government agency decisions by career civil servants in areas like employment, insurance, elections, and the environment. Cases from our magistrate courts, family courts, or government agencies can be triple headers: A decision is made, it gets reversed and then the decision reversed again in our Supreme Court.


Once in a great while, even our highest court gets reversed in Washington D.C. by the highest court in the land. In D.C., it could be a vote of 5-4, or even 9-0, but then it’s really final, until the Supreme Court reverses itself – which it has more than once.


That is the nature of our rich, ancient, and complex legal system. Each person plays their proper role – whether it’s the advocates bringing, defending, and arguing cases, front-line civil servants making the “call on the field,” or appeals court judges affirming and reversing as their judgment dictates.


Court decisions are not personal – they are professional decisions about what direction our law is pointing. No one can be right all the time (the position I argued for came in second last week).


As Justice Jackson tried to tell us, no one is really “infallible,” but by carefully following our constitutional system, we constantly improve our legal system.





Regan is an attorney with the Wheeling-based law firm of Bordas & Bordas.

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