Conflicts of interest in Bush v. Gore: Did some justices vote illegally?

Finally, in Aetna Life Insurance Co. v. Lavoie,82 an insured brought an action in an Alabama state court against an insurer for tortious bad-faith refusal to pay a valid claim. After a jury awarded $ 3.5 million in punitive damages, the insurer appealed to the Alabama Supreme Court, which affirmed in a 5-to-4 decision.83 A justice in the majority, who also wrote the court's per curiam opinion, had himself brought a similar action against another insurer, which was pending in an Alabama trial court at the time of the state supreme court's decision in Aetna.84 In several ways, the state supreme court's decision clarified, and perhaps changed, state law-all of them improving the justice's litigation position in his own case.85 The U.S. Supreme Court held that his "participation in this case violated" the insurer's "due process rights as explicated in Tumey, Murchison, and Ward."86 It was irrelevant

whether in fact Justice Embry was influenced, but only whether sitting on the case then before the Supreme Court of Alabama "'would offer a possible temptation to the average . . . judge . . .'" . . . The Due Process Clause "may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way, 'justice must satisfy the appearance of justice.'"87

Tumey and Ward disqualified individual trial judges, while Gibson disqualified an entire regulatory board. No prior due process case had disqualified one judge in an appellate court. "But we are aware of no case, and none has been called to our attention, permitting a court's decision to stand when a disqualified judge casts the deciding vote."88 Because Justice Embry cast the deciding vote and wrote the per curiam opinion, the U.S. Supreme Court vacated the state supreme court's decision.89

F. THE QUESTION OF DISCRETION

Appellate courts review different types of issues according to different standards. The three primary ones are de novo review, review for clear error, and review for abuse of discretion. Issues of law are reviewed de novo (about which more in a moment). Fact-finding by a trial judge is reviewed for clear error, which means that an appellate court will reverse only if the trial judge made an error that is "clear." Many-but not all and perhaps not even most-procedural issues are reviewed for abuse of discretion, which allows "the judge to choose from several satisfactory options"90 but will reverse if the judge makes a choice outside that range. The clear error and abuse of discretion standards defer to some extent to the judgment of the trial judge on the theory that the trial judge is closer to the case and has a better feel for it. The de novo standard does not.

An appellate court's de novo review-sometimes called plenary or independent review-assesses whether the trial court correctly applied the law without deferring to the trial court's view of the issue. An appellate court exercising de novo review feels free to reverse if-had it been in the trial court's position-it would have decided the issue differently from the way the trial court did. Traditionally, a court exercising this type of review did not mention the phrase de novo or any of its synonyms. There was no need to because de novo review involves no deference to the lower court. De novo review is like a clear pane of glass: if what you see through it is error, you call it that and reverse. Other standards of review are like lenses that add to or change what the unaided eye would see, and those standards cannot be applied without announcing the type of lens used. Although traditionally appellate courts did not mention a de novo standard when applying it, recent custom, especially in federal courts, has been to announce whatever standard of review is being used either in the transition from facts to analysis in a simple opinion or at the beginning of the discussion of each issue in a more complex opinion. Because the traditional and the more recent customs are both being used today-not only in the same appellate court, but often by the same appellate judge-we as readers of appellate opinions know that a de novo standard is being used when we are told that it is-or when we are not told about any standard of review. For convenience here, I will refer to the former as an explicit use of de novo review and to the latter as an implicit use of de novo review.