Oct. 1, 2025 – The problems that appellate judges must solve “if they were proposed as soap opera scripts would be rejected as too implausible to be worth the time of the audience,” said U.S. Seventh Circuit Court of Appeals Judge Frank H. Easterbrook.

“But they actually happen.”

Four Seventh Circuit judges revealed how they solved the problems on appeal at a recent Marquette University Law School panel, moderated by Professor Chad M. Oldfather, titled “Judges on Judging: A Window into Appellate Decision-Making.”

Oldfather recently published Judges, Judging, and Judgment: Character, Wisdom, and Humility in a Polarized World, which examines judicial problem solving.

The judges on the panel were Easterbrook, Michael B. Brennan, Michael Y. Scudder, Jr., and Chief Judge Diane S. Sykes.

Sykes, a Marquette Law graduate and former Wisconsin Supreme Court justice, is scheduled to begin senior status today (Oct. 1). At a reception after the CLE panel discussion, Marquette recognized her for her service.

‘A Dialogue’

Chief Judge Diane S. Sykes

The discussion began by defining “judicial decision making … as a dialogue, a dialogue within the judicial branch so that turning to the back of the blue brief is a review of what that lower court did,” said Brennan, informed by his Seventh Circuit colleague Judge Kenneth F. Ripple.

From there, the questions proliferate. “What’s the role of the standard of review? What’s appellate court decision-making versus trial court decision-making? What about the Supreme Court cert process?”

“And then the concept of judicial collegiality of the dialogue,” Brennan continued. “Not just between one level of the court and another, but within that same court to ensure that there the decisions are going forward in a manner that’s productive for everybody.”

“In addition to the dialogue within the judicial branch,” Brennan concluded, “it would be the dialogue between the judicial branch and the legislative branch. … Then there’s also a judicial dialogue with non-government entities, the academy, the role of law review articles, the influence they can have on an area of law.”

Sykes magnified that process from her approach.

“What I have learned over the course of my 33 years on the bench is that all judges work with the same legal materials – statutes, constitutions, common law decisions, precedent, regulations, scads of regulations, both in the state and federal systems.”

“We all make a concerted effort to check our biases, our own preferences for outcomes, at the start of the case.”

For her, although a judge “may have a sense of how the case should be decided,” Sykes has no intuitive shortcut.

Most appellate judges, Sykes said, “work from the legal materials to the decision in the case and filter the facts of the case through those legal materials,” although judges differ on “how those legal materials will be prioritized and weighted.”

Scudder, too, saw factors that are “more descriptive of the way that we do our work and what is really informing decisions,” dull but real parameters such as standards of review, who bears the burden of proof, “doctrines of waiver and forfeiture, and considerations of plain error.”

‘Self-abnegation’

Judge Frank H. Easterbrook

“The phrase that should come to mind to every judge,” Brennan said, “is self-abnegation.” A judge’s role isn’t to forward policy preferences.

A judge, in fact, may have to decide whether an issue should be decided.

When courts have exceeded their role, they “can get into real trouble, and courts have for long periods of time, is getting beyond that judicial role,” Brennan said.

“[P]eople can begin to question that authority if they get beyond the judicial role,” Brennan explained.

“I want to save that authority, that power, to exercise it when it’s really necessary.”

A little voice goes off in his head, Scudder said, reminding him of his limits as a federal judge on a court of limited jurisdiction – defined by U.S. Constitution’s Article III limits to “cases and controversies.”

“That very much pulls me toward a preference of narrow over broad decisions, let the law develop, take it one case at a time,” Scudder said, and leave the rest to the other branches of government.

Often, a judge will face an unfamiliar statute in a case, Scudder said. He dives into legislative history “to understand exactly what Congress was trying to get at when it passed this particular statute.”

He asks his law clerks to “find some press that was generated around the time the statute was enacted, just to understand what was giving rise to it.”

Now in reading the statute, Scudder explained, “the language makes a lot more sense because you can contextualize it against the backdrop of some real-world problem that the parties have brought into court.”

“I don’t think it’s any form of sin to look at legislative history,” Scudder said.

“The world is full of problems,” Easterbrook said, “but the rules for resolving the problems are supposed to be decided by people who you can throw out of office when they don’t do what you want or when they don’t do what you like.

“They’re not supposed to be given to people with life tenure. That’s one reason why the United States rose up in rebellion against England.”

‘Real Problems in the World’

Michael B. Brennan

“What I conceive of myself as doing is solving the parties’ problem,” Easterbrook said.

“I mean, real things happen in the world. … The parties have a problem. I’ve always thought that being a judge was the greatest job you could have because the number of problems the parties have in the real world is infinite.”

The summary of argument in the appellant’s brief presents Easterbrook with “the general theme.” The district court opinion gives “a better understanding of the problem.

“Go back and read the briefs,” Easterbrook continued. They tell “me what the events in the world are and what some of the parties think the legal principles are.”

“It’s not the job of the appellate court to give you an abstract answer,” like legal scholars may do, Easterbrook explained.

“It’s to solve the party’s problem in light of what’s happened to them. I think legal issues grow out of the events in the real world, rather than being imposed on them by the lawyers or judges.”

That real problem contains legal issues, which may not be what the lawyers say they are, Easterbrook said, and then “you have to bring your own jurisprudence to it.”

“Judges don’t think that legal problems are like apples and pears to be picked off of trees and resolved independently,” Easterbrook concluded. “They arise out of real problems in the world, and then to solve them, you need to impose a jurisprudential framework on them.

“And you don’t get that framework out of what the lawyers are saying. You can get that framework out of a study of history. You can get it out of a study of articles.”

Room for a Hunch

Michael Y. Scudder, Jr.

For Sykes, who didn’t come from the academy to the courts, her framework formed out of the crucible of Milwaukee County Circuit Court’s high-volume criminal docket “and having to make decisions very, very quickly.”

Intuition here – unlike in appellate decisions that form precedent to guide the future – serves a purpose, Sykes explained.

“For a trial judge, there are vast areas of the law that are … entrusted to the sound discretion of the trial court, and that leaves room for the kind of hunch, intuition, ‘What’s rough justice here?’”

Input​s still matter, Sykes explained, “from the lawyers, and the witnesses sometimes, if the lawyers don’t ask the right questions, and then make a sound discretionary judgment call about what justice is in that case.”

‘Where Intuition is Deadly’

Easterbrook offered another take on intuition – it “depends on what kind of problem the facts of the case lead you to.” He offered three examples.

“Suppose the claim in the case is that there should be a jury trial in a dispute between a normal citizen and the Federal Trade Commission about a fine the Federal Trade Commission imposes, and you’re led to the Seventh Amendment, which says that the right of the jury trial in 1791 shall be preserved.

“Unless you’re an extraordinarily unusual person, you do not have intuitions about the jury trial right in 1791.

“You might be able to do some learning about it, but intuition will get you exactly nowhere.”

Another example, common at the Court of Appeals, involves whether searches and seizures are reasonable under the Fourth Amendment, Easterbrook described.

“You ask the Supreme Court, ‘What is reasonable?,’ and the Supreme Court says, ‘Well, you know, it’s kind of touchy-feely, depends on the circumstances, don’t invade privacy too much, but don’t undervalue the role of solving crimes.’”

“You’ve got to go at it by being, well, reasonable.”

“By the time they’ve been on the bench for a while, judges have intuitions about how they’re going to resolve probable cause questions because they’re led to that by the nature of the rule,” Easterbrook concluded his second example.

Finally, what is an unreasonable restraint of trade under the Sherman Act?

“If you think you’re going to decide that by intuition, you’re in for a big surprise because in the field of economics, what some people view as common sense turns out to be very misleading,” Easterbrook said. “Many of the economic answers are counterintuitive.”

“I’ve given you a rule of reason in antitrust where intuition is deadly, a historical rule in the Seventh Amendment where intuition is useless and deadly, and then a common rule of reason in the Fourth Amendment where it’s not clear that anything except an educated intuition is going to be of any use,” Easterbrook summarized.

“And what you hope is your appellate judge will never confuse the Fourth Amendment with the Sherman Act. He will have some sense steeped in his or her reading and tradition about where one of these approaches works and where one of them doesn’t.”