Appellate Practice

Seriously, Though: Nobody Has the Right to Appeal

After I posted “Court: Nobody Has the Right to Appeal” (Dec. 1) about a ruling in favor of Adam Nobody, someone tweeted at me that it was the “click bait headline of the year.” Pretty sure that was a compliment, though unfortunately not one I can say I deserved in 2016, of all years. But it made me think I should also mention something I considered mentioning in the original post, but didn’t because it was late and, well, that Overwatch match wasn’t going to play itself. The something was this: in fact, nobody does have the right to appeal, in the sense of a constitutional right. In other words, everybody, including you, doesn’t have it.

The U.S. Constitution1 guarantees the right to “due process,” but that doesn’t mean you have a constitutional right to an appeal. Depending on what’s at stake, you may not even have a right to a trial in the first place. Due process requires—and I’m quoting the Supreme Court here—”some kind of hearing.” The more you might lose, the more of a hearing you get. Of course the Sixth Amendment provides a right to a trial in criminal cases, and it even has to be speedy, public, and some other things (unless you’re accused of terrorism in which case we just ignore most of that). But as this law-review article explains, even in criminal cases there is no federal constitutional right to an appeal.

The good news is that you may not need one at least in 47 states and the federal system, because the state constitutions, legislatures, and Congress have all provided for at least one appeal “by right.” In two other states, the state supreme court has adopted a court rule that does the same thing. But in Virginia, except in death-penalty cases, you have no right to appeal at all.

You might still get an appeal even there; it’s just that you have to petition the court for it in the same way that you have to petition the U.S. Supreme Court for certiorari. The court might very well let you appeal (which doesn’t mean you’d win, of course), but you don’t have even a statutory right to do it.

Don’t feel too bad, because most appeals fail anyway. But the bottom line is that, at least in the sense of a U.S. federal constitutional right, it’s literally true that nobody has the right to appeal.

I realize Nobody is Canadian, but I don’t know the Canadian answer, so at least for now this is limited to U.S. law.