In two noteworthy ways, the term “dialogue” was central to an event involving four judges of the U.S. Court of Appeals for the Seventh Circuit at Eckstein Hall on September 25, 2025.

A daylong visit by Seventh Circuit judges to Marquette Law School had multiple components. It included a morning session in the Law School’s Lubar Center in which the court heard arguments on six cases; a midafternoon program in which the judges discussed their work with an audience of Marquette law students; and an end-of-day reception which included a recognition of the Hon. Diane S. Sykes, L’84, as she completed her term as chief judge of the Seventh Circuit and assumed senior status (the next blog post in this series will say a few words about that event).

Even beyond all of this, the day included a late-afternoon CLE panel discussion program, before about 200 lawyers in the Lubar Center. It was titled “Judges on Judging: A Window into Appellate Decision Making” and moderated by Marquette Law School Professor Chad Oldfather.

That is the first reason to use the term “dialogue.” The relatively informal program offered a chance to hear collegial conversation among Chief Judge Sykes and Judges Frank H. Easterbrook, Michael B. Brennan, and Michael Y. Scudder about how they approach cases that come before them.

“Dialogue” also was a key term used to shed light on the work of appellate judges. Judge Brennan said that the term applied not only to proceedings involving the parties in a case but also in much broader senses—dialogue among judges, dialogue with courts at different levels of the judicial system, dialogue between the judicial and legislative branches, dialogue with the legal academy, and dialogue with thought leaders outside the court system. In considering a specific case, appellate judges are aware of the ways others are listening to and communicating with them and vice versa.

As an intermediate appellate court, the judges do not pick what cases they will hear, and their role has constraints, the judges said.

Sykes said that as a circuit court judge in Milwaukee County, in the 1990s, she had more latitude to make “sound discretionary calls” and use some degree of intuition about determining the outcome of a case. At the appeals level, she said, judges work from the legal materials in front of them, and they need to be attentive to and faithful to what their role is. That makes their approach somewhat more formalistic and less oriented to practicalities than in a lower court, Sykes said.

Judge Easterbrook said a lot of people think that what judges do is similar to what legal scholars do. “That’s not what judges do,” he said. “Judges solve a party’s problem. They don’t provide abstract principles and discussion.” He said, “Legal issues grow out of the real world, not from legal debates.” (Some of the situations that come before courts may seem improbable, he said, “but they actually happen.” ) Once you have a problem in front of you, he said, “you bring your own jurisprudence to it,” but you don’t just decide what seems right.

Easterbrook described retired Supreme Court Justice Stephen Breyer as “America’s pragmatist in chief.” Such is not Judge Easterbrook’s mindset. Legislatures, not judges, solve problems in that sense, he said. “I am unabashedly a textualist.” He is interested to know how the law applies to a real problem.

Judge Scudder said he wants to know the background and context of a case that is before him. That sometimes includes looking into the legislative history of a statute (“it’s not a sin” to do that, he said) and reading news coverage from the time a law was passed to try to gain more understanding of what legislators were thinking. As Scudder also discussed in his Hallows Lecture at Marquette Law School on March 3, 2025 (see the edited text in the Fall 2025 Marquette Lawyer magazine), he believes strongly that judges need to “stay in our lane,” respecting the limitation in Article III of the Constitution to considering specific “Cases” and “Controversies.”

Federal appellate judges are particularly attuned to opinions and decisions of the U.S. Supreme Court and other circuits, Scudder said. He said that an appellate court is “a court of review,” and judges do not have the same discretion that federal district judges sometimes have. “We’re keenly aware of what our role is and what review we’re conducting,” he said.

Judge Brennan said that a phrase that judges should keep in mind is “self-abnegation”—setting aside personal interests and beliefs. Judges should stick to their judicial role, he said, and when they go beyond it, “that’s where problems occur.” He said that, when considering cases, judges should ask if this is something they should be deciding or need to decide.

Professor Oldfather asked the judges how many “hard cases” they deal with. Brennan answered that there is a difference between “hard” and “important.” He said that overall, about 25 percent of cases present hard questions. Sykes said, “That sounds about right to me.”

Easterbrook allowed that if the controlling precedent involved in a case was written by the late Justice Antonin Scalia, the case is easy. If it is from the late Justice David Souter, it’s hard. The former favored rules and the latter favored standards, Easterbrook said.

Sykes said she has found over the years that, at all levels of state and federal courts, there were strong levels of professionalism among judges, and their commitment to act on legal principles, and not personal opinions, was firm. “We all make concerted efforts to check our biases, our preferences, for how a case should be decided,” she said.

It was a privilege for Marquette Law School to be able to host these distinguished judges as they gave the bar some glimpses into how they approach their work.