What the proper role of a lower court judge when faced with a novel legal issue? Should it try to arrive at what it considers the best reasoned result, or predict what the reviewing court would do?
Howard J. Bashman thinks a court has the option of choosing either method.
I argue that a court should answer a legal question to the best of their ability given current precedent without thinking about what a reviewing court might do. First, deciding what a reviewing court might do on a novel question is a difficult task. Why abandon what you consider is the correct answer for a different solution that you are not even certain the reviewing court would agree with? Anticipating what the Supreme Court might do would necessitate counting up and analyzing the votes of 9 justices. Second, the lower court opinion itself can be a persuasive document. It is an opportunity for a lower court to provide its own amicus brief to a reviewing court. Third, how would the reasoning be presented? "With the new appointment of Justice Alito, there will be five votes to uphold the law..." Such an opinion would constitute a shocking disregard of a judge's duty. Fourth, the reviewing court might change its opinions or membership.
Reasons for trying to predict what a reviewing court might do include: (1) it would increase consistency in legal outcomes across lower courts; (2) it might reduce the reviewing court's caseload; (3) in practice, what the reviewing court will do is, in the end, the law; (4) it might reduce the time parties have to wait for a final outcome; and (5) it would reduce professional embarrassment of being told you are wrong.
A slightly different question might be, should a court try to avoid being reversed? This is a separate question in that many decisions are either not appealable, or unlikely to be appealed. A court could also fashion an order in a way to reduce the possibility of being reversed by making certain factual findings, or not stating what the specific grounds for the ruling are (and what they are not). I find this practice objectionable because it would be an attempt to undermine the purpose of having a court of appeal, which is have a consistent application of the law, simply to avoid being reversed. A lower court should welcome being reversed where they overlooked an issue, and at least not mind being reversed where there is simply a disagreement at to what the correct application of law should be.
This question can also apply to a law clerk: does one recommend what the judge would probably think is the correct answer, or does one recommend what they believe is the correct answer. A clerk may be shy and not want the judge they work for to think less of them for having a different view of the law.