Justice Brent Appel
When he’s not on the bench or hip deep in legal research, what Iowa Supreme Court Justice Brent Appel finds truly therapeutic is getting his bare hands into the dirt planting and tending trees and hostas on his family’s Warren County acreage.
“I like to get my hands dirty,” he says, “and planting a tree is about as good as it gets.”
Just like plunging into Iowa topsoil, Appel relishes diving into his work on the court. The law books and copies of cases piled in nearly every square inch of his office near the state Capitol are evidence of how he immerses himself in legal research. Then, most evenings, after leaving the office and the kids are settled in for the night, Appel spends a few more hours in a closet-sized study reading and writing.
This immersion in his work has characterized Appel’s career as a deputy attorney general, as a lawyer in private practice and as a justice on the state’s highest court. Appel learned early on that diligent preparation pays off, as for example when he prepared for the second of four cases he argued before the U.S. Supreme Court in 1984.
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The case was Nix v. Williams. Robert Anthony Williams’ conviction for the abduction and murder of a 10-year-old Des Moines girl was thrown out by the U.S. Supreme Court on the grounds that Des Moines police officers violated Williams’ constitutional rights in luring him with a “Christian burial speech” to lead authorities to her body. He was convicted on retrial, the case was again appealed to the high court and Appel, then a 34-year-old deputy attorney general, successfully argued the state’s case.
Appel recently sat down to discuss that experience, his 37-year legal career and his current work on the court. Following are edited excerpts of that conversation.
Q. Nix v. Williams was your second argument before the U.S. Supreme Court?
A. It was. One of the nice things about being in the Attorney General’s Office is that I had the time I needed to prepare. I worked two or three weeks solid just on the case prior to oral argument, making sure I knew all the cases. The value of thorough preparation is very high, very high.
Q. So, you’ve been on both sides of the bench in oral argument. How does that shape your thinking as a judge in oral argument?
A. The purpose of oral argument, to me, is to answer the court’s questions. I didn’t want to give a speech; I wanted to know where the justices were going. Justice Powell, for example, was on the court and I absolutely wanted to get him in my tent. So I wanted to engage. I wanted to get the conversation going. To some extent, that sort of carries over into the work I do today. The questions I ask, invariably I hope, are straightforward. And they do reflect my thinking oftentimes. I usually ask questions of both sides, but I look for potential weaknesses in the argument and I want to explore them. And I do expect the lawyers to answer the questions directly and engage.
Q. To see what you’re driving at?
A. Yes. The very best lawyers are the ones that are engaged with you. That kind of oral argument is very interesting and very helpful. It does occur with some regularity. When it doesn’t occur, it’s flat and not terribly useful.
Q. Some say that after reading the briefs, the record and lower-court rulings, oral argument is kind of a waste of everyone’s time. It doesn’t sound like you agree with that.
A. Oh, I don’t agree. For me it is not a waste of time, in part because I tend to be a slow decision-maker. After reading the briefs and probably the key cases before the oral argument, we have impressions. But they’re impressions, and I want to be able to test them out. The oral argument allows that testing to occur. I wouldn’t say I change my mind quite frequently on the basis of oral argument, but I do explore stuff all the time in oral argument.
Q. But it can shape your thinking where you will go with a decision?
A. Oh, absolutely.
Q. After oral argument and the court retreats in conference to discuss the cases, is there an open discussion?
A. You are assigned at random to present the case to the court. The presenter will give a very brief summary of the case, and then some impressions and where they’re heading with it. Then it goes counterclockwise around the table. Each justice, by custom, has an opportunity to express his views in a semi-uninterrupted fashion. Justice Waterman is at my right; when I’m done he’s up. And people let him talk for a while. when he’s done, it goes to Justice Hecht. The purpose is that even people who are undecided get an excellent chance to present their views. And it prevents us from locking up real fast if there is a controversial case, and there are two sides. And, oftentimes an undecided justice may ask, “Have you looked at this part of the record?” I do appreciate that aspect of the court – that some people may have picked something up that I hadn’t. Once it’s been all the way around, then you have your free-for-all and everybody gets to talk. When I’m presenting a case, often times the most valuable person is the one that’s undecided.
Q. Because they raise good questions?
A. Well, number one, they might be somebody I’ve got to swing. But number two is: “Well, let’s listen up here.” This is why we have seven and not one. Once we’ve been all the way around, the person presenting will say, “Well, I will try to write something.” Or maybe not if it looks like the majority is going the other way, and the case gets reassigned.
Q. When you get ready to write an opinion, how do you proceed? You’ve read all the background and some of the related cases. What’s left?
A. I certainly know what the issues are, and I have a sense of where I’m going, but I want to get my hands on whatever’s out there to test where I’m going. So if it’s a question of statutory interpretation, I want to understand the background of the statute. I want to understand what the policy purposes of the statute are; I want to understand the overarching framework of the statute. Then I want to look through cases with great care. If it’s something that’s provoked academic commentary, I’m absolutely interested in the academic commentary. I try to engage in a fairly thorough review of what the environment is of this potentially fairly narrow legal issue. That’s step one. Then, step two is writing it based on the background information, and much of it goes on the cutting room floor. But I do want to have what I consider adequate mastery of the subject matter before I write. If it’s a common-law question, I’m very much interested in how other states have approached the question. There are three possible approaches to it, or four approaches to it. Which one is best?
Q. There is a school of thought at the U.S. Supreme Court level that federal law in America should not be affected by how courts in other countries rule. Taking that argument to the state level, should Iowa care about what other state courts have said?
A. Well, if it’s a common-law issue, almost for sure other states have struggled with the exact same question and you just learn so much from reading their cases. They’ve plowed the ground, and it’s a wonderful education I think. I’m looking for cases in other states that are well-reasoned. I’m not looking for a kind of “me too” case that follows some authority from someplace. But the reasoning is very interesting and it usually helps illuminate what our options are.
Q. What if they’re going off in a far different direction than you were going?
A. Well, then I might think about it. If it’s a question of first impression, what has happened in Iowa is germane. So I’m interested in what our Iowa case law is, but not only that. I want to know what’s going on in other states. I value the wisdom of other courts that are struggling with virtually the same issues. In some ways, it is researching what the available options are and then deciding which option is best rather than just sitting in the abstract and coming up with something that seems to make sense. And I am much more sure-footed than if I had just relied on a handful of cases and try to do what makes the most sense.
Q. When you are writing an opinion, who are you writing for? Who’s your audience?
A. There are multiple audiences. You write in part to the loser, the person who hasn’t prevailed, because you want to tell them why. You write for lawyers. You write for District Court judges. There can be a little bit of tension there: How complex should an opinion be? And I would say as a general matter we have some sensitivity to criticism of judicial opinions being too complex. There is a delicate balance between nuance and simplicity, and I struggle with that. I want to be thorough. On the other hand, I don’t want to be dense, and I sometimes use complex language. In the editing process, I try to break down my sentences. They’re just too long, let’s say. As we go through our legal training, we want to be precise, and sometimes that leads to complicated expression.
Q. So you are self-aware of that and you try to overcome it?
A. I am self-aware. And I’m sure if you went back through my opinions, you will probably find some sentences and say, ‘You know, that could have been broken into two or three sentences maybe.
Q. Your opinions are generally longer than your colleagues’ opinions.
A. I think that’s maybe right, in part because I want to show my work and I think this context I’m talking about is kind of important.
Q. Given your interest in history and your education in history, are you writing for history? Your work does get put in these bound volumes.
A. I guess I’m more worried about setting the table for the decision that follows. And many of our decisions are contested, and rightly so. And if they weren’t contested, they wouldn’t be before the Supreme Court, right? Any opinion can be questioned. When we come out with an opinion, the public, lawyers, anyone is perfectly free to criticize it and attack it. I think we need to persuasively explain our choices, and oftentimes context is important in doing that. That leads to a somewhat longer discussion. I want to be transparent. I guess that is one of the reasons why I write the way I do. I think it is important to lay out how I and the court came to the ultimate conclusion in perhaps some more detail that other members of the court.
Q. Who are some U.S. Supreme Court justices you admire?
A. I’ve got a few, actually. One is Justice Stevens, and the other is Robert Jackson.
Q. Jackson because of his writing style?
A. Jackson for his writing, but also he can be very penetrating.
Q. Have they shaped your approach?
A. Well, of course I’d love to write like Jackson, but that’s not going to happen in all likelihood. Jackson just had a way with prose that is really striking. I would love to sharpen my writing skills in some way. I do the best I can with what I’ve got. But when you read some of Jackson’s stuff, then you compare it to my latest opinion, you think, well maybe that’s outside my ability. But in terms of going forward, I think about my writing.
Q. So you don’t think of yourself as a finished product?
A. Oh, heavens no. In fact, I think your education continues and continues. I recently had the great pleasure of swearing in new lawyers. It’s always a fun event. I love doing it, because everybody’s happy and it’s a great milestone. In my remarks, I have the notion of continuing to learn. When you graduate from law school, it’s a benchmark, but you just continue to learn and learn and learn. So here I am, now on the Supreme Court for 10 years, and I’m still learning every day.
Q. How long do you want to continue doing this?
A. Well, I don’t know. As long as I think it is useful. I’m 66 now, so I could potentially serve until I am 72. I have no plans to retire at 72, I’ll tell you, at all. I understand I won’t be on the bench at that time. I’ll be looking for the next legal project, I guess.
Q. You talked earlier about how, when growing up in Dubuque, you enjoyed going out on the family fishing boat on the Mississippi. So, retiring to a fishing boat an option?
A. No. I want to continue to be engaged productively in some way as long as my health allows that, and so far I have been very fortunate to be in good health.
Brent R. Appel
Born in Dubuque in 1950
Graduated from Dubuque Senior High School
Earned bachelor’s and master’s degrees in history at Stanford University in California
Earned J.D. at the University of California, Berkeley and served a one-year clerkship on the U.S. Court of Appeals for the District of Columbia Circuit after graduation
Appointed Iowa First Assistant Attorney General in 1979 and Deputy Attorney General in 1983
Engaged in private practice in central Iowa from1987 until 2006
Appointed to the Iowa Supreme Court in 2006
Appel and his wife, Staci, have five sons and one daughter