Judicial independence in excess: Reviving the judicial duty of the supreme court

Cornell Law Review

Volumn 94, Issue 3, 2009, Pages 587-636

  Carrington, Paul D ^a   Cramton, Roger C ^b  

^a DUKE UNIVERSITY   (United States)

^b Cornell University ^*  (United States)

Author keywords

[No Author keywords available]

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EID: 65149095409     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (451)

1. Press Release, S. Methodist Univ. Dedman Sch. of Law, Justices O'Connor, Breyer Host Conference at Dedman School of Law (Apr. 4, 2007), available at http://www.law.smu.edu/news/04-04-07.aspx.
2. Id:, Press Release, Georgetown Univ. Law Center, Fair and Independent Courts: A Conference on the State of the Judiciary (Sept. 28, 2006), available at http://www.law.georgetown.edu/news/events/conference-story. html.
3. Justice Sandra Day O'Connor, Panel Discussion at the American Academy of Arts & Sciences Conference: The Public Good, The Independence of the Courts (Apr. 28, 2007) (audio recording available at http://www.amacad.org/audio/ publicgood.aspx).
4. Symposium, Fair and Independent Courts: A Conference on the State of the Judiciary, 95 GEO. L.J. 895 (2007).
5. Other journals have also held conferences and symposia and published multiple articles on the subject. See, e.g., James J. Alfini &Jarrett Gable, The Role of the Organized Bar in State Judicial Selection Reform: The Year 2000 Standards, 106 DICK. L. REV. 683 (2002);
6. William V. Dorsaneo, HI, Judicial Independence and Democratic Accountability in Highest State Courts, 53 SMU L. REV. 255 (2000);
7. Symposium, Judicial Elections: Selecting Judges in the 21st Century, 30 CAP. U. L. REV. 437 (2002);
8. Symposium, Judicial Independence and Accountability, 72 S. CAL. L. REV. 311 (1999);
9. Symposium, Judicial Independence and Accountability, LAW & CONTEMP. PROBS., Summer 1998.
10. See generally CHARLES GARDNER GEYH, WHEN COURTS & CONGRESS COLLIDE: THE STRUGGLE FOR CONTROL OF AMERICA'S JUDICIAL SYSTEM (2006).
11. For expressions of the hostility, see ROBERT H. DIERKER JR., THE TYRANNY OF TOLERANCE: A SITTING JUDGE BREAKS THE CODE OF SILENCE TO EXPOSE THE LIBERAL JUDICIAl ASSAULT (2006);
12. EDWIN VIEIRA, HOW TO DETHRONE THE IMPERIAL JUDICIARY (2004);
13. JUDICIAL TYRANNY: THE NEW KINGS OF AMERICA (Mark I. Sutherland ed., 2005).
14. For other recent observations, see Robert F. Nagel, Limiting the Court by Limiting Life Tenure, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES 127 (Roger C. Cramton & Paul D. Carrington eds., 2006);
15. Berle M. Schiller, Reducing Conflict Between Congress and the Judiciary, JUDGES' J., Summer 2005, at 26.
16. For earlier observations, see AMERICAN BAR ASSOCIATION, AN INDEPENDENT JUDICIARY: REPORT OF THE COMMISSION ON SEPARATION OF POWERS AND JUDICIAL INDEPENDENCE, at vii (1997);
17. N. Lee Cooper, President, Am. Bar Ass'n, Remarks at Opening Session of the American Law Institute (May 19, 1997), in THE AMERICAN LAW INSTITUTE, REMARKS AND ADDRESSES 21, 24-28 (1997);
18. Herbert M. Kritzer & John Voelker, Familiarity Breeds Respect: How Wisconsin Citizens View Their Courts, 82 JUDICATURE 59, 60 (1998).
19. But see John M. Scheb II & William Lyons, Public Perception of theSupreme Court in the 1990s, 82 JUDICATURE 66, 66 (1998) (stating that surveys from 1994 and 1997 show that the public has a positive perception of the Court).
20. For a recent empirical measurement, see Kathleen Hall Jamieson & Michael Hennessy, Public Understanding of and Support for the Courts: Survey Results, 95 GEO. L.J. 899 (2007).
21. Charles Babington, Senator Links Violence to "Political" Decisions: "Unaccountable"Judiciary Raises Ire, WASH. POST, Apr. 5, 2005, at A7 (quoting Sen. John Cornyn).
22. The extreme referendum proposed to the voters in South Dakota in 2006 would have stripped judges of their immunity from liability for decisions deemed to be incorrect. Bob von Sternberg, Campaign 2006: South Dakota State's Abortion Ban Only One Issue on a Crowded Ballot, STAR TRIB. (Minneapolis), Nov. 1, 2006, at 14A, LexisNexis Academic.
23. See, e.g., Ruth Bader Ginsburg, Judicial Independence: The Situation of the U.S. Federal Judiciary, 85 NEB. L. REV. 1, 7-8 (2006);
24. Adam Liptak, Public Comments by Justices Veer Toward the Political, N.Y. TIMES, Mar. 19, 2006, at 22.
25. Act of March 21, 2005, Pub. L. No. 109-3, 119 Stat. 15. The ultimate decision was reported in Schiavo ex rel. Schindler v. Schiavo, 404 F.3d 1270 (11th Cir. 2005), and the court quite properly held that Congress was not constitutionally empowered to reverse a judicial decision denying federal jurisdiction over the matter of medical care. Id. at 1280-82.
26. Edward A. Hartnett suggests that Congress may have been sending the federal courts a message in enacting the Schiavo legislation. See Edward A. Hartnett, Congress Clears Its Throat, 22 CONST. COMMENT. 553, 584 (2005)
27. See Steven G. Calabresi, The Terri Schiavo Case: In Defense of the Special Law Enacted by Congress and President Bush, 100 NW. U. L. REV. 151 (2006).
28. But see George J. Annas, "I Want to Live": Medicine Betrayed by Ideology in the Political Debate over Terri Schiavo, 35 STETSON L. REV. 49 (2005);
29. Kathy L. Cerminara, Collateral Damage: The Aftermath of the Political Culture Wars in Schiavo, 29 W. NEW ENG. L. REV. 279 (2007).
30. Pamela A. MacLean, Fearing Backlash, Judges Go Public: Nasty Campaigns and the Gay Marriage Ruling Lead to First Forum, NAT'L L.J., July 14, 2008, at 5.
31. See BENJAMIN WITTES, CONFIRMATION WARS: PRESERVING INDEPENDENT COURTS IN ANGRY TIMES (2006).
32. See, e.g., Saikrishna Prakash & Steven D. Smith, How to Remove a Federal Judge, 116 YALE L.J. 72 (2006);
33. see also James E. Pfander, Removing Federal Judges, 74 U. CHI. L. REV. 1227 (2007) (responding to Prakash and Smith);
34. Martin H. Redish, Good Behavior, Judicial Independence, and the Foundations of American Constitutionalism, 116 YALE L.J. 139 (2006) (same).
35. See David Rottman, The State Courts in 2005: A Year of Living Dangerously, 38 THE BOOK OF THE STATES 237 (Keon S. Chi ed., 2006).
36. A balanced assessment drawing on empirical work is DAVID M. O'BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS (7th ed. 2005). A less qualified account is ROBERT E. RIGGS, CORRUPTED BY POWER: THE SUPREME COURT AND THE CONSTITUTION (2004).
37. See infra Part II.
38. The idea of discretionary review was first introduced by an 1891 Act. See Judiciary Act of 1891, ch. 517, 26 Stat. 826, 827-28.
39. This early enactment limited discretionary review to appeals from decisions of the courts of appeals that did not present a constitutional issue, the interpretation of a treaty, an admiralty prize, a serious crime, or a question of federal jurisdiction. Id.
40. These limitations left scant room for discretionary appellate jurisdiction. The discretion was extended by the Judiciary Act of 1916, ch. 448, 39 Stat. 726, and again by the Judiciary Act of 1925, ch. 229, 43 Stat. 936. By these stages, Congress extended appellate discretion to all cases. See 39 Stat. at 727-28; 43 Stat. at 937-39.
41. And so with trivial exceptions, the Court now decides only those cases it chooses to decide, and indeed only those issues raised in those cases that it deems worthy of its attention. See 28 U.S.C. §§ 1251, 1253-54, 1258-59 (2006).
42. On the legislative history of the 1925 Act, see FELIX FRANKFURTER & JAMES M. LANDIS, THE BUSINESS OF THE SUPREME COURT: A STUDY IN THE FEDERAL JUDICIAL SYSTEM 86-102 (Transaction Publishers 2007) (1928);
43. Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges' Bill, 100 COLUM. L. REV. 1643, 1649-1704 (2000);
44. Jonathan Sternberg, Deciding Not to Decide: The Judiciary Act of 1925 and the Discretionary Court, 33J. SUP. CT. HIST. 1 (2008).
45. Hartnett, supra, also records later revisions expanding the power. Opposition to the idea was forcefully expressed by eminent Senator Thomas J. Walsh (D.-Mont.). See Thomas J. Walsh, The Overburdened Supreme Court, in PROCEEDINGS OF THE THIRTY-THIRD ANNUAL MEETING OF THE VIRGINIA STATE BAR ASSOCIATION 216 passim (John B. Minor ed., 1922).
46. On the remnant of mandatory jurisdiction, see Margaret Meriwether Cordray & Richard Cordray, The Supreme Court's Plenary Docket, 58 WASH. & LEE L. REV. 737, 752-53 (2001);
47. see also Bennett Boskey & Eugene Gressman, The Supreme Court Bids Farewell to Mandatory Appeals, 121 F.R.D. 81, 97 (1989).
48. Richard A. Posner, The Supreme Court 2004 Term - Foreword: A Political Court, 119 HARV. L. REV. 32, 35-39, 60 (2005) (describing the way in which the Supreme Court is in the process of becoming a political court).
49. District of Columbia v. Heller, 128 S. Ct. 1695 (2008).
50. Richard A. Posner, In Defense of Looseness: The Supreme Court and Gun Control, NEW REPUBLIC, Aug. 27, 2008, at 32.
51. J. Harvie Winkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. (forthcoming Apr. 2009).
52. For an illustrative analysis of the substantive influence of law clerks in one case, see Helen J, Knowles, Clerkish Control of Recent Supreme Court Opinions? A Case Study of Justice Kennedy's Opinion in Gonzales vs. Carhart, 10 GEO. J. GENDER & L. (forthcoming 2009).
53. William H. Rehnquist, Remarks of the Chief Justice at Washington College of Law Centennial Celebration at American University: The Future of the Federal Courts (Apr. 9, 1996) (transcript available at http://supct.law.cornell.edu/ supct/justices/rehnau96.htm) [hereinafter Remarks on the Future of Federal Courts];
54. cf. William H. Rehnquist, The Notion of A Living Constitution, 54 TEX. L. REV. 693, 698 (1976) (stating that if the authority to declare laws unconstitutional is not stricdy tied to the language of the Constitution, judges would be a "a small group of fortunately situated people with a roving commission to second-guess Congress").
55. The present authors have elsewhere advanced, or will advance, two other proposals to reform the Supreme Court to moderate the supremacy of Justices without impairing their independence. One would limit them to long terms in office. See Paul D. Carrington & Roger C. Cramton, The Supreme Court Renewal Act: A Return to Basic Principles, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURTS JUSTICES, supra note 5, at 467.
56. An eminent group of law professors, bar leaders, and former chief justices of state supreme courts who approved the scheme "in principle" is listed in Paul D. Carrington & Roger C. Cramton, Reforming the Supreme Court: An Introduction to REFORMING THE COURT: TERM LIMITS FOR SUPREME COURTS JUSTICES, supra note 5, at 3, 5-7.
57. The second would extend to Supreme Court Justices the system of accountability for breaches of professional responsibility that is imposed on all odier Article III judges. See Paul D. Carrington & Roger C. Cramton, Original Sin and Judicial Independence: Providing Accountability for Justices, 50 WM. & MARY L. REV. (forthcoming Mar. 2009), available at http://ssrn.com/abstract=1099397. Our three proposals are not interdependent and are not here presented together for consideration as a new judiciary act. But if Congress adopted all three proposals, it would not have in the least impaired the independence of the Justices in their judicial role of deciding contested cases; Congress would have instead fulfilled its duty to provide "checks and balances."
58. On the independent importance of that aim, see Nagel, supra note 5, passim;
59. Robert F. Bauer, A Court Too Supreme for Our Good, WASH. POST., Aug. 7, 2005, at B3.
60. Act of Mar. 3, 1891, ch. 517, 26 Stat. 826;
61. see FRANKFURTER & LANDIS, supra note 17, at 220-94 (explaining the story behind the enactment).
62. 21 CONG. REC. 3404 (1890).
63. See 26 Stat. at 826-30.
64. FRANKFURTER & LANDIS, supra note 17, at 107 ("It is enough if the designers of new judicial machinery meet the chief needs of their generation.").
65. See id. at 220-94.
66. Court Is the "Ascendant" Branch, for Now, NAT'L L.J., Aug. 6, 2001, at C7 (quoting ex-Solicitor General Seth Waxman).
67. AM. BAR FOUND., ACCOMMODATING THE WORKLOAD OF THE UNITED STATES COURTS OF APPEALS (1968) (Carrington served as director of this study);
68. Comm'n on Revision of the Fed. Court Appellate Sys., Structure and Internal Procedures: Recommendations for Change, 67 F.R.D. 195, 204-08 (1975) (Cramton was a member of this Commission);
69. Study Group on the Caseload of the Supreme Court, Report, 57 F.R.D. 573, 577-84 (1972) (prepared for the Federal Judicial Center);
70. see also FED. JUDICIAL CTR., STRUCTURAL AND OTHER ALTERNATIVES FOR THE FEDERAL COURTS OF APPEALS (1993);
71. Comm'n on Structural Alternatives for the Fed. Courts of Appeals, Final Report (1998), available at http://www.library.unt.edu/gpo/ csafca/final/appstruc.pdf (discussing the ways in which courts of appeals can adapt to transform in this new environment). Our three proposals are less dramatic than any of those five earlier proposals, each of which had the unanimous support of eminent groups that included presidents of the American Bar Association, distinguished scholars, federal judges, a chair of the Senate Judiciary Committee, and a former Supreme Court Justice. Despite this support, none of their proposals for reform have gained the serious attention of Congress.
72. ALFRED LORD TENNYSON, Aylmer's Field, (1793), in THE POETIC AND DRAMATIC WORKS OF ALFRED LORD TENNYSON 240, 246 (Houghton Mifflin 1898) (see lines 435-37 specifically).
73. See MODEL CODE OF JUDICIAL CONDUCT Canon 1 (2007), available at http://www.abanet.org/ judicialethics/ABA-MCJC-approved.pdf ("A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.").
74. See ROBERT A. DAHL, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? 152-54 (2d ed. 2003) (arguing that when a court deals with issues of fundamental rights, its actions carries legitimacy with it, but if it moves outside of this realm its actions become more dubious);
75. SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION 123-39 (2006).
76. For a highly partisan expression of substantive grievances against the Court, see THE MOST DANGEROUS BRANCH: THE JUDICIAL ASSAULT ON AMERICAN CULTURE (Edward B. McLean ed., 2008).
77. One pamphlet protested: "There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven." Essays of Brutus No. XV, Mar. 20, 1788, in 2 THE COMPLETE ANTI-FEDERALIST 437, 438 (Herbert J. Storing ed., 1981).
78. See generally DANIEL J. BOORSTIN, THE MYSTERIOUS SCIENCE OF THE LAW 52-53 (1941) (arguing that there was little law for judges to make because of the existence of a natural law that a person could follow simply by following his self-interest).
79. The common law doctrine of precedent was thus addressed to judges as users rather than as makers of law. As Edmund Burke explained: "We ought to understand [the law] according to our measure; and to venerate where we are not able presently to comprehend." EDMUND BURKE, AN APPEAL FROM THE NEW TO THE OLD WHIGS 116 (London, Pall-Mall, 2d ed. 1791).
80. THE FEDERALIST No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (stating that "the judiciary is beyond comparison the weakest of the three departments of power");
81. see also ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 1 (1962) (arguing that the supposed "least dangerous branch" is in fact "the most extraordinarily powerful court of law the world has ever known"). Montesquieu put it most strongly: "Of the three powers above-mentioned, the judiciary is in some measure next to nodiing." MONTESQUIEU, 1 THE SPIRIT OF LAWS 221 (Thomas Nugent trans., London, J. Nourse & P. Vaillant, 3d ed. 1758).
82. A Supreme Court opinion first appeared in Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801).
83. See generally GEORGE LEE HASKINS & HERBERT A. JOHNSON, FOUNDATIONS OF POWER: JOHN MARSHALL, 1801-15, in 2 THE OUVER WENDELL HOLMES DEVISE: HISTORY OF THE SUPREME COURT OF THE UNITED STATES 207-45 (Paul E. Freund ed., 1981) (explaining the political situation surrounding the federal judiciary during the time John Marshall was appointed Chief Justice).
84. The device had been in use in the highest court in the Commonwealth of Virginia for about a decade, but no other state or federal court employed it before 1801. The idea was derived from the practice of the Privy Council mat had long advised the King on the propriety of the decisions of the colonial judges that the parties asked him to correct. See generally John P. Dawson, The Privy Council and Private Law in the Tudor and Stewart Periods: I, 48 MICH. L. REV. 393 (1950).
85. Official reporters of judicial decisions were in place in most American jurisdictions in 1815, decades before such a function was known to England. An official reporter was not appointed in England until 1865. See CARLETON KEMP ALLEN, LAW IN THE MAKING 207-08 (7th ed. 1964);
86. JOHN P. DAWSON, THE ORACLES OF THE LAW 82-83 (1968);
87. see also J.H. Baker, Records, Reports and the Origins of Case-Law in England, in JUDICIAL RECORDS, LAW REPORTS, AND THE GROWTH OF CASE LAW 15, 15-16 (John H. Baker ed., 1989).
88. French case law was made regularly accessible by private reporters in the 1830s. See DAWSON, supra, at 402. Regular annual reports commenced in Prussia in 1847.
89. See id. at 438.
90. See U.S. CONST. art. V; Thomas E. Baker, Exercising the Amendment Power to Disapprove of Supreme Court Decisions: A Proposal for a "Republican Veto ",22 HASTINGS CONST. L.Q. 325 (1995) ("Thirty-four Senators, or 146 Representatives, or any combination of thirteen state legislative chambers can defeat a 'republican veto,' [a type of amendment to disapprove a Supreme Court decision] for good, bad, or no reason at all.").
91. See JOHN TAYLOR, CONSTRUCTION CONSTRUED, AND CONSTITUTIONS VINDICATED 194-96 (Richmond, Va., Shepherd & Pollard 1820) (advocating strict adherence to the constitution and avoidance of "fluctuating precedents");
92. Letter from Thomas Jefferson to William Johnson (Oct. 27, 1822), in 10 THE WRITINGS OF THOMAS JEFFERSON: 1816-1826, at 222, 223-25 (Paul Leicester Ford ed., New York, G.P. Putnam's Sons 1899) (bemoaning that the Court had begun to issue a single unanimous opinion, instead of allowing each member of the Court to write his own opinion and provide his own reasons for that decision).
93. But see Letter from James Madison to Thomas Jefferson (Jan. 15, 1823), in 3 LETTERS AND OTHER WRITINGS OF JAMES MADISON 1816-1828, at 291 (Philadelphia, J.B. Lippincott & Co. 1867).
94. 5 U.S. (1 Cranch) 137 (1803).
95. Id. at 176-78.
96. On Marshall's exercise of self-restraint, see JEAN EDWARD SMITH, JOHN MARSHALL: DEFINER OF A NATION 296-308 (1996) (arguing that "[i]f Marshall had wanted to embarrass Jefferson, or if he had shared the partisan Federalist view," he could have used his power on the Court to do so, but he declined to venture into the political fray).
97. See Marbury, 5 U.S. at 169-70 ("The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion.");
98. see also id. at 144 (allowing Mr. Levi Lincoln, Attorney General for President Jefferson, time to consider how to answer certain questions in light of his duty to the Executive and to the Court, so as to avoid confrontation between the political branches).
99. See Remarks on the Future of Federal Courts, supra note 23.
100. See supra note 17 and accompanying text.
101. Congress took the last step in extending the 1925 empowerment in 1988. See Act of June 27, 1988, Pub. L. No. 100-352, §§ 1, 2(c), 5(a), 102 Stat. 662, 662-63 (codified as amended in scattered sections of 28 U.S.C.).
102. See Comm'n on Structural Alternatives for the Fed. Courts of Appeals, supra note 32, at 12 (finding that "the courts of appeals have become the only federal error-correcting courts" and the "federal appellate courts of last resort").
103. For example, a Federalist legislature in New Hampshire in 1813 expelled two of the three judges, for insufficient cause, from the state's superior court of judicature when it reconstructed the court as the supreme judicial court. EDWIN D. SANBORN, HISTORY OF NEW HAMPSHIRE: FROM ITS FIRST DISCOVERY TO THE YEAR 1830, at 261-62 (Manchester, N.H., John B. Clarke 1875).
104. The Democratic legislature elected in Kentucky in 1824 fired all members of their highest court, all of whom were Whigs, and replaced them as punishment for decisions that had an unwelcome impact on tenants and debtors. ARNDT M. STICKLES, THE CRITICAL COURT STRUGGLE IN KENTUCKY, 1819-1829, at 43-64 (1929).
105. For a review of issues and literature in later times, see Paul D. Carrington, Judicial Independence and Democratic Accountability in Highest State Courts, LAW & CONTEMP. PROBS., Summer 1998, at 79, 87-99.
106. For a recent account of legal realism, see Michael Steven Green, Legal Realism as Theory of Law, 46 WM. & MARY L. REV. 1915, 1918 (2005) (defending the realist theory of law to show that, although it can be criticized, it is also plausibly correct).
107. See FREDERICK GRIMKE, THE NATURE AND TENDENCY OF FREE INSTITUTIONS 438 (John William Ward ed., Harv. Univ. Press 1968) (1848) ("The judiciary does not deal so direcdy nor so frequendy with political questions as do the other departments. But it does sometimes deal with them, and that too definitively ....").
108. Id. at 438-39.
109. Id. at 452.
110. See id. at 448, 448-62 ("An election for a term of years may be necessary to enable the mind of the judge to keep pace with the general progress of knowledge and more especially to make him acquainted with the diversified working of the institutions under which he lives ....");
111. see also Caleb Nelson, A Re-Evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America, 37 AM. J. LEGAL HIST. 190, 217-19 (1993).
112. For accounts of elected judges, see Kermit L. Hall, Constitutional Machinery and Judicial Professionalism: The Careers of Midwestern State Appellate Court Judges, 1861-1899, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA 29 passim (Gerard W. Gawalt ed., 1984);
113. Kermit L. Hall, The "Route to Hell" Retraced: The Impact of Popular Election on the Southern Appellate Judiciary, 1832-1920, in AMBIVALENT LEGACY: A LEGAL HISTORY OF THE SOUTH 229 passim (David J. Bodenhamer & James W. Ely, Jr. eds., 1984).
114. See KEITH E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY 284 (2007).
115. See id. at 230.
116. Id. at 284.
117. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 560-63 (1832);
118. JILL NORGREN, THE CHEROKEE CASES: THE CONFRONTATION OF LAW AND POLITICS 117-22 (1996).
119. For an account, see Edwin A. Miles, After John Marshall's Decision: Worcester v. Georgia and the Nullification Crisis, 39 J. S. HIST. 519 (1973).
120. See Swift v. Tyson, 41 U.S. (16 Pet.) 1, 8-9 (1842), overruled by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
121. Erie held in part that by applying the doctrine from Swift "this Court and the lower courts have invaded rights which in our opinion are reserved by the Constitution to the several states." 304 U.S. at 80.
122. Luther v. Borden, 48 U.S. (7 How.) 1, 32 (1849).
123. Scott v. Sandford, 60 U.S. (19 How.) 393, 396-97 (1857).
124. President Buchanan and leading Senators encouraged the Scott decision. On its subsequent history, see 3 MARTIN SIEGEL, THE SUPREME COURT IN AMERICAN LIFE: THE TANEY COURT, 1836-1864, at 66-68 (1987);
125. see also DON E. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POIJTICS 307-14 (1978).
126. On Lincoln's appointment of Stephen Field, see PAUL KENS, JUSTICE STEPHEN FIELD: SHAPING LIBERTY FROM THE GOLD RUSH TO THE GILDED AGE 95-97 (1997).
127. See Ex parte Milligan, 71 U.S. (4 Wall.) 2, 134 (1866).
128. The President's action was ratified by Congress. See Act of Mar. 3, 1863, ch. 81,12 Stat. 755.
129. His message is recorded in 6 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS: 1789-1908, at 19 (James D. Richardson ed., Wash., D.C., Bureau of Nat'l Literature & Art 1908).
130. See Ex parte McCardle, 74 U.S. (7 Wall.) 506, 515, 518 (1868).
131. See Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 601 (1895), vacated 158 U.S. 601 (1895).
132. See ROBERT STANLEY, DIMENSIONS OF LAW IN THE SERVICE OF ORDER: ORIGINS OF THE FEDERAL INCOME TAX, 1861-1913, at 225-29 (1993).
133. THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION (Walter Carrington ed., Boston, Little, Brown & Co., 8th ed. 1927) (1868).
134. Tr. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 596-601 (1819). Cooley's criticism of this case appears in his treatise, 1 COOLEY, supra note 70, at 554-601.
135. James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129, 135 (1893);
136. see James B. Thayer, Professor Thayer's Address, in JOHN MARSHALL: THE TRIBUTE OF MASSACHUSETTS 25, 68 (Marquis F. Dickinson ed., 1901).
137. CHRISTOPHER G. TIEDEMAN, THE UNWRITTEN CONSTITUTION OF THE UNITED STATES 162 (New York, G.P. Putnam's Sons 1890).
138. See supra note 17.
139. So termed because judges lobbied for it. See Richard G. Stevens, Introduction to FRANKFURTER & LANDIS, supra note 17, at ix, ix;
140. CHARLES ALAN WRIGHT & MARY KAY KANE, LAW OF FEDERAL COURTS 7 (6th ed. 2002).
141. Kenneth W. Starr, The Supreme Court and Its Shrinking Docket: The Ghost of William Howard Toft, 90 MINN. L. REV. 1363, 1364 (2006).
142. After losing the presidency in 1912, he moved to Yale and wrote about constitutional law, chiefly about how constitutional law serves to constrain his successors in the White House. WILLIAM HOWARD TAFT, OUR CHIEF MAGISTRATE AND HIS POWERS Passim (H. Jefferson Powell ed., Carolina Academic Press 2002) (1916).
143. On Taft's leadership on the Court, see generally Robert Post, Judicial Management and Judicial Disinterest: The Achievements and Perils of Chief Justice William Howard Taft 1 J. SUP. CT. HIST. 50 (1998);
144. Robert Post, The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court, 85 MINN. L. REV. 1267, (2001);
145. Kenneth W. Starr, William Howard Taft: The Chief Justice as Judicial Architect, 60 U. CIN. L. REV. 963, 965-68 (1992).
146. On the formation of the Federal Judicial Conference under Taft, see generally PETER GRAHAM FISH, THE POLITICS OF FEDERAL JUDICIAL ADMINISTRATION 40-90 (1973) (discussing the development of major regional and national institutions of federal judicial administration).
147. One of Taft's first acts as Chief Justice was to abandon the practice of abstaining from any effort to influence legislation in Congress, a practice established by John Marshall and followed by all of Taft's predecessors. Taft lobbied and soon secured enactment of the Judiciary Act of 1922, ch. 305, 42 Stat. 837.
148. Justice Brandeis protested that it made his colleagues into the "nine black beedes in the temple of Karnak" and would cause them to have an inflated vision of themselves. Pnina Lahav, History in Journalism and Journalism in History: Anthony Lewis and the Watergate Crisis, 29 J. SUP. CT. HIST. 163, 163 (2004)
149. (quoting Anthony Lewis, Echoes of History Heard in a Pillared Courtroom, N.Y. TIMES, July 9, 1974, § 1, at 26).
150. Jeffrey B. Morris, What Heaven Must Be Like: William Howard Taft as Chief Justice, 1921-30, in YEARBOOK 1983: SUPREME COURT HISTORICAL SOCIETY 80, 80 (William F. Swindler ed., 1983).
151. While President, Taft published an article on judicial administration. See William H. Taft, The Delays of the Law, 18 YALE L.J. 28 (1908).
152. Posner, supra note 18, at 77.
153. See WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT passim (1995);
154. see also BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION passim (1998).
155. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
156. Brown v. Bd. of Educ. (Broom I), 347 U.S. 483 (1954);
157. see also Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 301 (1955).
158. See TONY FREYER, THE LITTLE ROCK CQRISIS: A CONSTITUTIONAL I NTERPRETATION 108 (1984).
159. 358 U.S. 1 (1958); see generally FREYER, supra note 84.
160. See Cooper, 358 U.S. at 18;
161. see also id. at 24 (Frankfurter, J., concurring).
162. See WHITTINGTON, supra note 57, at 285.
163. Philip B. Kurland, Toward a Political Supreme Court, 37 U. CHI. L. REV. 19, 31 (1969).
164. Other government officials generally accept the Court's interpretations of the Constitution, however debatable those interpretations may be. See Daniel A. Farber, The Importance of Being Final, 20 CONST. COMMENT. 359, 364 (2003);
165. see also Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359, 1377 (1997) (arguing that Cooper reflects the reason for the Constitution as law - it allows one interpretation to become authoritative).
166. 163 U.S. 537 (1896).
167. Laura Kalman refers to a generation of lawyers as "the children of the Warren Court." LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM 52 (1996).
168. See generally JACK BASS, UNLIKELY HEROES (1981) (discussing the Fifth Circuit's desegregation jurisprudence).
169. See generally DAVID J. GARROW, BEARING THE CROSS: MARTIN LUTHER KING, JR., AND THE SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE (1986) (detailing Martin Luther King, Jr.'s development as the foremost spokesperson of the civil rights movement).
170. Indeed, the Black Power Movement's threats of violence against racists and racist institutions may also have played a role in changing the public mind. See TIMOTHY B. TYSON, BLOOD DONE SIGN MY NAME 197-219 (2004).
171. Act of July 2, 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. §2000 (2006)).
172. See MICHAEL J. KIARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 363 (2004) (arguing that the intervention of the Department of Justice and Congress achieved desegregation that the federal judiciary alone was powerless to accomplish).
173. See GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 52 (2d ed. 2008) ("The numbers show that the Supreme Court contributed virtually nothing to ending segregation of the public schools in the Southern states in the decade following Brown. The entrance of Congress and the executive branch ...changed this. ... In the first year of the [Civil Rights Act of 1964], nearly as much desegregation was achieved as during all the preceding years of Supreme Court action.");
174. see also Melvin I. Urofsky, "Among the Most Humane Moments in All Our History ": Brown v. Board of Education in Historical Perspective, in BLACK, WHITE AND BROWN: THE LANDMARK SCHOOL DESEGREGATION CASE IN RETROSPECT 1, 34-38 (Clare Cushman & Melvin I. Urofsky eds., 2004) (discussing soudiern states' opposition to the Court's decision in Brown and their attempts to thwart desegregation).
175. See generally KIM ISAAC EISLER, A JUSTICE FOR ALL: WILLIAM J. BRENNAN, JR., AND THE DECISIONS THAT TRANSFORMED AMERICA (1993) (outlining Justice Brennan's career and the extent of his influence on Supreme Court's direction and ideology);
176. FRANK I. MICHELMAN, BRENNAN AND DEMOCRACY (1999) (discussing Justice Brennan's ideas on constitutional democracy and democratic liberalism).
177. DAVID E. MARION, THE JURISPRUDENCE OF JUSTICE: WILLIAM J. BRENNAN, JR., THE LAW AND POLITICS OF "LIBERTARIAN DIGNITY" 161-62 (1997).
178. For contemporaneous criticism of this change, see Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703 (1975).
179. William J. Brennan, Jr., The National Court of Appeals: Another Dissent, 40 U. CHI. L. REV. 473, 483 (1973).
180. In defense of diis expanded view of his role, Justice Brennan adopted Justice Goldberg's statement that the "power to decide cases presupposes the power to determine what cases will be decided." Id. at 484 (footnote omitted).
181. In responses to Paul Freund's questioning of this principle's origin, Professor Hartnett confirms that it was an idea first advanced in 1925 as a
182. See, e.g., Lawrence v. Texas, 539 U.S. 558, 578 (2003) ("The[ ] right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.");
183. Roe v. Wade, 410 U.S. 113, 153 (1973) ("This right of privacy ... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.");
184. Furman v. Georgia, 408 U.S. 238, 269-82 (1972) (Brennan, J., concurring) (discussing whether the application of death penalty would violate Eighfh Amendment's ban on "cruel and unusual punishment").
185. See SANFORD LEVINSON, CONSTITUTIONAL FAITH 46-50 (1988). This form of judicial supremacy was also expressed by Lord Coke; he explained it to King James as a subject accessible only to initiates and quite beyond the understanding of a mere royal. CATHERINE DRINKER BOWEN, THE LION AND THE THRONE: THE LIFE AND TIMES OF SIR EDWARD COKE (1552-1634), at 304-06 (1957).
186. Chief Justice Taft expressed the thought as follows: "[T]he people at the polls no more than kings upon the throne are fit to pass upon questions involving the judicial interpretation of the law." GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE 213 (1994) (footnote omitted).
187. That its intellectual leader, Justice Brennan, celebrated the Catholic faith may have been more significant than was recognized at the time.
188. This vision was not so new. As noted above, concern over judicial activism had motivated many amendments of state constitutions in the nineteenth century. See supra notes 50-52 and accompanying text. Duncan Kennedy attributes this vision to other developments in western thought. Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber's Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 HASTINGS L.J. 1031, 1065 (2004).
189. Alexander Bickel was among the first to recognize that this is the role the Court has assigned itself. Alexander M. Bickel, The Supreme Court 1960 Term - Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 41-42 (1961).
190. See generally ROBERT F. NAGEL, UNRESTRAINED: JUDICIAL EXCESS AND THE MIND OF THE AMERICAN LAWYER (2008).
191. See STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 3-12 (2005).
192. A more recent depiction of the modest role of the Justices is DANIEL A. fARBER & sUZANNA sHERRY, jUDGMENT cALLS: pRINCIPLE AND pOLITICS IN cONSTITUTIONAL LAW (2009).
193. See id. at 18 ("Since law is connected to life, judges, in applying [the Constitution] in light of its purpose, should look to consequences, including 'contemporary conditions, social, industrial, and political, of the community to be affected.'").
194. For an extended critique, see Ken I. Kersch, Justice Breyer's Mandarin Liberty, 73 U. CHI. L. REV. 759 (2006) (reviewing BREYER, supra note 105).
195. See BREYER, supra note 105, at 18-19.
196. In this respect, Justice Breyer sides with CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT, at xiv (1999) (arguing that judicial minimalism promotes, rather than undermines, democratic processes). Jeffrey Rosen describes Justice Breyer as "cautious, incremental, pragmatic, respectful of historical arguments, and suspicious of sweeping claims about fundamental values." Jeffrey Rosen, Two Cheers for the Rehnquist Court, 1 NEXUS 37, 39 (1996).
197. See Neal Devins, Should the Supreme Court Fear Congress?, 90 MINN. L. REV. 1337, 1352 (2006) ("[T]oday's lawmakers do not place a high value on their power to independendy interpret the Constitution.... Over the past thirty years, the percent of hearings raising significant constitutional issues has declined throughout Congress.").
198. See WHITTINGTON, supra note 57, at 282 ("Radier than bearing the political cost of casting votes against popular positions for the sake of abstract constitutional principles, elected officials on both sides of the political aisle are willing to accept judicial supremacy." (footnote omitted)).
199. See Hartnett, supra note 17, at 1717 ("A court that can simply refuse to hear a case can no longer credibly say that it had to decide it.").
200. Margaret Meriwether Cordray & Richard Cordray, The Philosophy of Certiorari: Jurisprudential Considerations in Supreme Court Case Selection, 82 WASH. U. L.Q. 389, 452 (2004).
201. Samuel Estreicher & John E. Sexton, A Managerial Theory of the Supreme Court's Responsibilities: An Empirical Study, 59 N.Y.U. L. REV. 681, 790 (1984);
202. see also Editorial, The Supreme Court and Certiorari: What Determines the Agenda?, 84 JUDICATURE 112, 112 (2000).
203. See Cordray & Cordray, supra note 112 at 410-15 (reviewing research finding that judges choose to grant certiorari based on ideological or strategic reasons). The data tends to confirm that Justices are often looking for a case that would be a "good vehicle" for developing the political policy they favor. H.W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 265 (1991).
204. See, e.g., KLARMAN, supra note 94 at 454-68 (arguing that the Court's decision in Brown spurred social reform but created enforceability problems and violent soudiern reactions);
205. RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY (2d ed. 2004);
206. ROSENBERG, supra note 95, at 420-29 (arguing that Supreme Court decisions often provide reformers symbolic victories and the illusion of substantive change);
207. Gerald N. Rosenberg, African-American Rights After Brown, in BLACK, WHITE AND BROWN: THE LANDMARK SCHOOL DESEGREGATION CASE IN RETROSPECT, supra note 95, at 203, 231 ("[C]ourts may serve an ideological function of luring movements for social reform to an institution that is structurally constrained from serving dieir needs, providing only an illusion of change.");
208. see also David J. Garrow, Bad Behavior Makes Big Law: Southern Malfeasance and the Expansion of Federal Judicial Power, 1954- 1968, 82 ST. JOHN'S L. REV. 1 (2008).
209. For diverse ruminations, see STEPHEN B. PRESSER, RECAPTURING THE CONSTITUTION: RACE, RELIGION, AND ABORTION RECONSIDERED 200-01 (1994) (positing that the Supreme Court has lost its way and infringed on the role of the legislature);
210. Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193, 1224-29 (1992);
211. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 18-19 (1959) (arguing that courts should respect value judgments made by legislatures).
212. Compare ROBERT H. BORK, SLOUCHING TOWARDS GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE 117-18 (1996) (arguing that the way to achieve constitutional legitimacy is through a constitutional amendment "making any federal or state court decisions subject to being overruled by a majority vote of each House of Congress"), with LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 227-48 (2004) (advocating for a system of popular constitutionalism rather than the Supreme Court as the ultimate arbiter of the Constitution),
213. and MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 154-76 (1999) (arguing for the abolishment of judicial review in favor of popular constitutionalism).
214. Reynolds v. Sims, 377 U.S. 533, 624-25 (1964) (Harlan, J., dissenting).
215. The degeneration of state sovereignty over matters of popular concern also seems to have vitiated the political vitality of local governments. See generally ROBERT F. NAGEL, THE IMPLOSION OF AMERICAN FEDERALISM (2001).
216. See William Van Alstyne, Notes on a Bicentennial Constitution: Part I, Processes of Change, 1984 U. ILL. L. REV. 933, 957 n.61.
217. H. JEFFERSON POWELL, CONSTITUTIONAL CONSCIENCE: THE MORAL DIMENSION OF JUDICIAL DECISION 118 (2008).
218. See NAGEL, supra note 104, at 121-33.
219. see id. at 130.
220. See id. at 129.
221. xhe inability of Harriet Miers to win confirmation in 2005 was apparently the result of her inability to persuade Republican Senators that she was sufficiently committed to their political convictions. See Michael A. Fletcher & Charles Babington, Mien, Under Fire from Right, Withdrawn as Court Nominee, WASH. POST, Oct. 28, 2005, at Al (quoting former Senator Dan Coats, who accompanied Miers on meetings where "senators rightly wanted to see some objective evidence of what her judicial philosophy was").
222. The Senate Minority Leader, Harry Reid, at the time of her nomination by President Bush released a statement: I like Harriet Miers. As White House Counsel, she has worked with me in a courteous and professional manner. I am also impressed with the fact that she was a trailblazer for women as managing partner of a major Dallas law firm and as the first woman president of the Texas Bar Association. In my view, the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer. The current justices have all been chosen from the lower federal courts. A nominee with relevant nonjudicial experience would bring a different and useful perspective to the Court. Press Release, Senator Harry Reid, U.S. Senate, Statement of Senator Harry Reid on the Nomination of Harriet Miers to the U.S. Supreme Court (Oct. 3, 2005), http://democrats. senate.gov/newsroom/record.cfm?id=246777. After the confirmation of Justice Samuel Alito, nominated by President Bush after Miers' withdrawal, Senator Reid released another statement: I continue to believe that Harriet Miers received a raw deal. She is an accomplished lawyer, a trailblazer for women and a strong advocate of legal services for the poor. Not only was she denied the up-down vote that my Republican colleagues say every nominee deserves, but she was never even afforded the chance to make her case to the Judiciary Committee. Press Release, Senator Harry Reid, U.S. Senate, Reid Statement on the Confirmation of Samuel Alito (Jan. 31, 2006), http://democrats.senate.gov./newsroom/record.cfm?id=250959.
223. For an account, see GEYH, supra note 5, at 171-222 (discussing prospective accountability of judicial nominees to the U.S. Senate);
224. NANCY SCHERER, SCORING POINTS: POLITICIANS, ACTIVISTS, AND THE LOWER FEDERAL COURT APPOINTMENT PROCESS 151-80 (2005) (observing that since the 1968 Presidential election, candidates have made the selection of Justices and judges a campaign issue).
225. Posner, supra note 18, at 56;
226. see also Sosa v. Alvarez-Machain, 542 U.S. 692, 750 (2004) (Scalia, J., concurring) (protesting that "[t]his Court seems incapable of admitting that some matters - any matters - are none of its business") (citations omitted). But note that Justice Scalia was among those who could not admit that the outcome of a presidential election is none of the Court's business. Bush v. Gore, 531 U.S. 1046, 1046-47 (2000) (Scalia, J., concurring) (responding to Justice Stevens' dissent to the Court's intervention by granting certiorari).
227. Judicial elections are a special problem, but the negative consequence of the Court's derivation of the "one man, one vote" rule from the Equal Protection Clause should not be ignored. That decision has increased the manipulation of district boundaries by legislators diminishing the vulnerability of elected bodies to popular influence. In Reynolds v. Sims, 377 U.S. 533, 568-71 (1964), the Court held that a state constitution providing that an upper house in the legislature seating representatives from each county did not meet the requirements of the Equal Protection Clause of the Fourteendi Amendment. On the current state of the issue, see Guy-Uriel E. Charles, Democracy and Distortion, 92 CORNELL L. REV. 601 (2007) (arguing that the Supreme Court's regulation of political gerrymandering can be justified);
228. Headier K. Gerken, The Texas and Pennsylvania Partisan Gerrymandering Cases: Lost in the Political Thicket: The Court, Election Law, and the Doctrinal Interregnum, 153 U. PA. L. REV. 503 (2004) (discussing the Court's current and prior jurisprudence and speculating on what the Court's next steps will be);
229. Samuel Issacharoff & Pamela S. Karlan, Where to Draw the Line?: Judicial Review of Political Gerrymanders, 153 U. PA. L. REV. 541 (2004) (arguing that it is impossible to render claims of political gerrymandering nonjusticiable and that the Justices' intervention, prompted by claims of excessive partisanship, may actually encourage further reduction in political competition);
230. Daniel R. Ortiz, Got Theory?, 153 U. PA. L. REV. 459, 475-501 (2004) (discussing application of the "got theory" argument, which is that the Court must defer to the political branches in these political cases, including partisan gerrymandering cases). So far, "one man, one vote" has not arisen in cases involving judicial elections.
231. See generally RICHARD L. HASEN, THE SUPREME COURT AND ELECTION LAW: JUDGING EQUALITY FROM BAKER V. CARR TO BUSH V. GORE (2003) (examining the Court's role in regulating political equality);
232. Grant M. Hayden, The False Promise of One Person, One Vote, 102 MICH. L. REV. 213 (2003) (discussing the one person, one vote standard in a general context rather than specifically applied to judicial elections);
233. cf. Guy-Uriel Charles, Judging the Law of Politics, 103 MICH. L. REV. 1099 (2005) (reviewing HASEN, supra).
234. See Gitlow v. New York, 268 U.S. 652, 666 (1925).
235. See Judiciary Act of 1925, ch. 229, 43 Stat. 936, 937-38.
236. Justice Stone's famous footnote in United States v. Carotene Products Co., 304 U.S. 144, 152 n.4 (1938), declared that the purpose of the Court was to advance the interests of citizens less influential with legislatures. See WILLIAM M. WIECER, THE BIRTH OF THE MODERN CONSTITUTION: THE UNITED STATES SUPREME COURT, 1941-1953, in 12 THE OLIVER WENDELL HOLMES DEVISE: HISTORY OF THE SUPREME COURT OF THE UNITED STATES, supra note 39, at 116-42 (Stanley N. Katz ed., 2006) (stating that footnote four from Carotene Products announced "the paradigm of post-1937 constitutional development").
237. U.S. CONST. amend. I. In Gitlow, the Court commenced the process of incorporation of the Bill of Rights into the Fourteenth Amendment. 268 U.S. at 664-67.
238. For an account, see ANTHONY LEWIS, FREEDOM FOR THE THOUGHT THAT WE HATE: A BIOGRAPHY OF THE FIRST AMENDMENT (2007).
239. Buckley v. Valeo, 424 U.S. 1, 262 (1976) (White, J., concurring in part and dissenting in part). Buckley, which struck down provisions of the Federal Election Campaign Act of 1971 that limited campaign expenditures, is the premier decision in this area.
240. See generally Richard H. Pildes, The Supreme Court 2003 Term - Foreword: The Constitutionalization of Democratic Politics, 118 HARV. L. REV. 28, 55-153 (2004) (discussing the design of democratic institutions, the nature of equal political representation, the role of political parties, and the structure of election financing);
241. Zephyr Teachout, The Anti-Corruption Principle, 94 CORNELL L. REV. 341, 383-97 (2009) (discussing Buckley and subsequent cases dealing with the danger of corruption resulting from political campaign contributions). The Supreme Court revisited the issue in McConnell v. FEC, in which the Court reviewed provisions of the Bipartisan Campaign Reform Act of 2002. 540 U.S. 93 (2003);
242. cf. also Randall v. Sorell, 548 U.S. 230, 236-37 (2006) (holding that limitations on expenditures by candidates and contributions by political parties in a Vermont campaign finance statute were "inconsistent with the First Amendment"). But cf. Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 382 (2000) (applying Buckley but sustaining a Missouri law limiting the size of contributions to candidates in state senate races to $1,075). The Court's latest utterance pushes the limit a litde further by invalidating a federal law allowing candidates to accept larger individual contributions if they are competing with a "millionaire candidate" spending vast sums of his own money. Davis v. FEC, 128 S. Ct. 2759, 2770-75 (2008) (invalidating parts of the Bipartisan Campaign Reform Act of 2002).
243. See generally Roy A. Schotland, Elective Judges' Campaign Financing: Are State Judges' Robes the Emperor's Clothes of American Democracy?, 2J.L. & POL. 57, 96-133 (1985) (discussing judicial campaign financing and possible reforms).
244. After accepting over $350,000 from diverse employees of State Farm Insurance Company for his 2004 campaign, Justice Lloyd Karmeier denied a motion to disqualify himself from casting the deciding vote in favor of State Farm on its appeal from an adverse judgment requiring it to pay punitive damages. Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801, 863-64 (2005) (reversing part of the lower court's judgment, including punitive damages), cert. denied, 547 U.S. 1003, 1003 (2006);
245. see Leonard Post, Contributions to Justice Lead to Protest: Ethics Case Highlights Judicial Election Issue, NAT'L L.J., Feb. 13, 2006, at 4.
246. Avery, 547 U.S. at 1003.
247. Justice Recusing Self from Massey Appeals, CHARLESTON DAILY MAIL (Charleston, W. Va.), Feb. 3, 2009, at 2A, LexisNexis Academic.
248. Marcia Coyle, Review Sought on Judicial Recusals: W. Va. Case Triggers Key Ethical Query, NAT' L.J., Aug. 4, 2008, at 1.
249. The American Bar Association first promulgated its Canons of Judicial Ethics in 1924. See CANONS OF JUDICIAL ETHICS (1924), in AMERICAN BAR ASSOCIATION, OPINIONS OF THE COMMITTEE ON PROFESSIONAL ETHICS AND GRIEVANCES WITH THE CANONS ON PROFESSION ETHICS AND CANON JUDICIAL ETHICS 29, 29-39 (1936).
250. In 1972 the ABA published its Model Code of Judicial Conduct that was intended to be enforced by a disciplinary system. An important aim of the Code was to protect the independence of the elected judiciary by forbidding those campaign practices most likely to call the integrity and disinterest of the candidates into public question. Judges have been subjected to discipline for gross violations of such rules. See, e.g., William Glaberson, States Rein in Truth-Bending in Court Races: Judges Face Penalties for Deceiving Voters, N.Y. TIMES, Aug. 23, 2000, at Al ("Across the country, judges are being fined, censured, and even threatened with removal for practicing that venerable political art: exaggerating or outright lying during a campaign.").
251. In 2007, the Code was revised. Although states have enacted diverse variations on the code, all have enforcement procedures that are active. See generally JAMES J. ALFINI ET AL., JUDICIAL CONDUCT AND ETHICS § 11.03 (4th ed. 2007) (discussing judicial discipline agency jurisdiction over campaign ethics violations).
252. See Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002) (striking down a rule prohibiting candidates for judicial election from announcing their views on disputed legal and political issues on First Amendment grounds).
253. MINN. CODE OF JUDICIAL CONDUCT Canon 5(A) (3) (d) (i) (2000).
254. Republican Party of Minn. v. White, 416 F.3d 738, 754-63 (8th Cir. 2005) (en banc), cert, denied, 546 U.S. 1157 (2006).
255. Id. at 763-66.
256. See id. at 766 (holding that the state rule violated the First Amendment).
257. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-83 (1964) (holding that in order for public officials to recover damages for a defamatory falsehood relating to their official conduct, they must prove "actual malice").
258. See Stephen B. Bright, Political Attacks on the Judiciary: Can Justice Be Done amid Efforts to Intimidate and Remove Judges from Office for Unpopular Decisions?, 72 N.Y.U. L. REV. 308, 313-15 (1997) (discussing the removal of Tennessee Supreme Court Justice Penny White);\
259. Traciel V. Reid, The Politicization of Retention Elections: Lessons from the Defeat of Justices Lanphier and White, 83 JUDICATURE 68 (1999) (discussing the defeat in retention elections of Nebraska Supreme Court Justice David Lanphier and Tennessee Supreme Court Justice Penny White);
260. Emily Heller, A Pa. Rarity: Incumbent Justice Out: Anger over Quiet Pay Raise Hits Judicial Vote, NAT'L L.J., Nov. 14, 2005, at 6;
261. Carol Morello, W.Va. Supreme Court Justice Defeated in Rancorous Contest, WASH. POST, Nov. 4, 2004, at A15.
262. For an empirical study of voter awareness of the identities of judicial candidates, see J. Christopher Heagarty, Public Opinion and an Elected Judiciary: New Avenues for Reform, 39 WILLAMETTE L. REV. 1287, 1295-99 (2003).
263. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995) (striking down an Ohio provision prohibiting anonymous campaign materials on First Amendment grounds).
264. See Viveca Novak, Judgment Day in Wisconsin, FACTCHECK.ORG, Mar. 10, 2008, http://www.factcheck.org/judicial- campaigns/judgment-day-in-wisconsin.html [hereinafter Novak, Judgment Day];
265. see also Viveca. Novak, Wisconsin Judgment Day: the Sequel, FACTCHECK.ORG, Mar. 21, 2008, http://www.factcheck.org/ elections-2008/wisconsin-judgment-day-the-sequel.html [hereinafter Novak, Sequel].
266. See Novak, Judgment Day, supra note 150.
267. See id.
268. See Novak, Sequel, supra note 150.
269. See id.
270. See id.
271. See id.
272. The strategy may have been suggested by John Grisham's novel The Appeal (2007), a painful account of a bought judicial election.
273. See Adam Liptak, Rendering Justice, with One Eye on Re-election, N.Y. Times, May 25, 2008, § 1, at 1.
274. The Wisconsin Judicial Commission commenced a proceeding on October 7, 2008 in the Supreme Court of Wisconsin. See Patrick Marley & Steven Walters, Judicial Commission Says Gableman Ad Was Deceiving, MILWAUKEE J. SENTINEL, Oct. 8, 2008, at Al, LexisNexis Academic.
275. See Maura Anne Schoshinski, Towards an Independent, Fair, and Competent Judiciary: An Argument for Improving Judicial Elections, 7 GEO. J. LEGAL ETHICS 839, 847 (1994).
276. See id. at 847-48.
277. See id. at 849.
278. See MICHAL R. BELKNAP, To IMPROVE THE ADMINISTRATION OF JUSTICE: A HISTORY OF THE AMERICAN JUDICATURE SOCIETY 102-06 (1992);
279. Schoshinski, supra note 160, at 850.
280. For an account of the variations injudicial selection schemes, see Polly J. Price, Selection of State Court Judges, in STATE JUDICIARIES AND IMPARTIALITY: JUDGING THE JUDGES 9, 16-19 (Roger Clegg & James D. Miller eds., 1996).
281. For accounts of the California debacle, see BETTY MEDSGER, FRAMED: THE NEW RIGHT ATTACK ON CHIEF JUSTICE ROSE BIRD AND THE COURTS 80-81 (1983);
282. PREBLE STOLZ, JUDGING JUDGES: THE INVESTIGATION OF ROSE BIRD AND THE CALIFORNIA SUPREME COURT (1981);
283. John H. Culver &John T. Wold, Judicial Reform in California, in JUDICIAL REFORM IN THE STATES 139, 156 (Anthony Champagne &Judith Haydel eds., 1993);
284. Joseph R. Grodin, Developing A Consensus of Constraint: A Judge's Perspective on Judicial Retention Elections, 61 S. CAL. L. REV. 1969 (1988);
285. Roberts. Thompson, Judicial Independence, Judicial Accountability, Judicial Elections, and the California Supreme Court: Defining the Terms of the Debate, 59 S. CAL. L. REV. 809 (1986).
286. Data on lawyer contributions was provided by the American Bar Association. See TASK FORCE ON LAWYERS' POLITICAL CONTRIBUTIONS, REPORT AND RECOMMENDATIONS: PART Two 89-107 (1998). The U.S. Chamber of Commerce reportedly spent $120 million in 2002-06, most of it through the Institute for Legal Reform, a tax-free affiliate. See Zach Patton, Robe Warriors, GOVERNING, Mar. 2006, at 34, 36.
287. See In re Marriage Cases, 183 P.Sd 384, 397 (Cal. 2008).
288. Jessica Garrison et al., Voters Approve Proposition 8 Banning Same-Sex Marriages, L.A. TIMES, Nov. 5, 2008, http://www.latimes.com/news/ local/la-me-gaymarriage5-2008nov05,0,1545381.story.
289. See MacLean, supra note 11.
290. See id.
291. See id.
292. The most recent effort to amend a state constitution to make judges less accountable to the people was made in Ohio in 1987. Despite the support of both parties and an array of other organizations, it was soundly rejected by the voters. See John D. Felice et al., Judicial Reform in Ohio, in JUDICIAL REFORM IN THE STATES, supra note 164, at 51, 51-69.
293. A similar result can now be expected in other states. The American Bar Association in 2002 reluctantly recognized this reality by acknowledging public finance of judicial campaigns as an alternative acceptable to it. See AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON JUDICIAL INDEPENDENCE, REPORT OF THE COMMISSION ON PUBLIC FINANCING OF JUDICIAL CAMPAIGNS passim (2002).
294. J.J. GASS, AFTER WHITE: DEFENDING AND AMENDING CANONS OF JUDICIAL ETHICS 10 (2004). On the relation between canons of judicial ethics and due process, see Randall T. Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 9 GEO. J. LEGAL ETHICS 1059 (1996).
295. See supra notes 136-37 and accompanying text.
296. Michael W. McConnell, The Redistricting Cases: Original Mistakes and Current Consequences, 24 HARV. J.L. & PUB. POL'Y 103, 116-17 (2000).
297. See generally Bush v. Gore, 531 U.S. 98 (2000).
298. For contemporaneous comment, see Paul D. Carrington & H. Jefferson Powell, The Right to Self-Govemment After Bush v. Gore, (Duke Univ. Sch. of Law Pub. Law and Legal Theory Working Paper Series, Working Paper No. 26, 2001);
299. see also Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 VA. L. REV. 1045 (2001);
300. Frank I. Michelman, Suspicion, or the New Prince, 68 U. CHI. L. REV. 679 (2001).
301. But see John C. Yoo, In Defense of the Court's Legitimacy, 68 U. CHI. L. REV. 775 (2001).
302. Justice Breyer assures us that the people accepted that result as demonstrated by the fact that there was no need to summon paratroops to enforce the judgment See Stephen Breyer, Judicial Independence: Remarks by Justice Breyer, 95 GEO. L J. 903, 907 (2007).
303. His view is supported by polling data assembled before the decision was announced. See Howard Gillman, Judicial Independence Through the Lens of Bush v. Gore: Four Lessons from Political Science, 64 OHIO ST. LJ. 249, 260 (2003).
304. For a comprehensive review of commentary on the decision, see CLARKE ROUNTREE, JUDGING THE SUPREME COURT: CONSTRUCTIONS OF MOTIVES IN BUSH V. GORE (2007).
305. Bush v. Gore, 531 U.S. at 111.
306. Unnoticed was another utterance of Chief Justice Marshall: the Court has "no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821).
307. Judiciary Act of 1922, ch. 306, sec. 2, 42 Stat. 837, 838 (current version at 28 U.S.C. § 331 (2006)). The Conference is a seldom-noticed council composed of the chief judges of the federal circuits, who acquire their status as chiefs by seniority in service on their courts, and other federal judges selected by their colleagues in the circuits or regions that they represent.
308. Judith Resnik, Democratic Responses to the Breadth of Power of the Chief Justice, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, supra note 5, at 181, 189.
309. See Peter Graham Fish, Crises, Politics, and Federal Judicial Reform: The Administrative Office Act of 1939, 32 J. POL. 599, 601-02 (1970).
310. Rules Enabling Act of 1934, ch. 651, 48 Stat. 1064 (codified as amended at 28 U.S.C. §§ 2072-74).
311. For a discussion on its origins, see Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1043-98 (1982).
312. The committee drafting the Federal Rules of Civil Procedure included no judges, but only eminent academics and leaders of the organized bar. Burbank, supra note 180, at 1132-37.
313. Act of Aug. 7, 1939, ch. 501, 53 Stat. 1223. 180 See Fish, supra note 179, at 601-02.
314. See id. at 604.
315. See Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 CARDOZO L. REV. 579, 605-13 (2005).
316. For an account of the theory, see generally DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION (1991) (exploring the applications of public choice to legal issues).
317. On its application to the judiciary, see Charles Gardner Geyh, Paradise Lost, Paradigm Found: Redefining the Judiciary's Imperiled Role in Congress, 71 N.Y.U. L. REV. 1165 (1996) (evaluating the strengths and weaknesses of the public choice theory with respect to federal judges);
318. Jonathan R. Macey, Judicial Preferences, Public Choice, and the Rules of Procedure, 23 J. LEGAL STUD. 627 (1994) (arguing that federal judges can create procedural rules that reflect their own self-interest because they have control over the development of the Federal Rules of Civil Procedure).
319. Over a period of forty years, the authors have worked closely with scores of federal judges and attest that every one of them was highly professional and dedicated to die public interest But judges, like professors or lawyers or doctors, do tend, when sharing a public responsibility, to agree that the future status of their group is an important and often dominant consideration.
320. There have been times when clerks' roles were elevated by disabilities of aging Justices requiring greater delegation. The post-1970 era . . . has featured two especially stark examples of judicial failure: the publicly visible mental disability of Justice William O. Douglas in 1975 following a serious stroke, and the far less dramatic scandal of Justice Harry A. Blackmun increasingly allowing his law clerks to hold greater and greater sway over his opinions during the 1980s and early 1990s. In addition, at least three other justices since 1970 - Hugo Black, Lewis Powell, Thurgood Marshall - have suffered mental decrepitude that seriously impaired their ability to do their jobs .... David J. Garrow, Protecting and Enhancing the U.S. Supreme Court, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURTS JUSTICES, supra note 5, at 271, 273 (citations omitted).
321. See, e. g., SIDNEY FINE, FRANK MURPHY: THE WASHINGTON YEARS 161-63 (1984);
322. LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN 148-49, 176-79 (2005);
323. David J. Garrow, Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, 67 U.
324. CHI. L. REV. 995 (2000) (providing multiple examples of ailing Justices relying heavily on their clerks);
325. David J. Garrow, The Brains Behind Blackmun, LEGAL AFF. May-June 2005, at 26.
326. For a summary listing of all the positions for which a young lawyer might apply, see Online System for Clerkship Application & Review (OSCAR), http:// lawclerks.ao.uscourts.gov.
327. Judiciary Act of 1891, ch. 517, 26 Stat. 826.
328. Decline of the institution of oral argument was first marked by Charles R. Haworth, Screening and Summary Procedures in the United States Courts of Appeals, 1973 WASH. U. L.Q. 257, 265-69.
329. See WRIGHT & KANE, supra note 75, at 771.
330. Id. at 352-69;
331. see also JOHN W. PALMER, CONSTITUTIONAL RIGHTS OF PRISONERS 351-79 (8th ed. 2006) (discussing the various types of additional litigation that prisoners may pursue after incarceration).
332. See generally RICHARD L. LIPPKE, RETHINKING IMPRISONMENT (2007). The precipitate growth in prisoner petitions is, in large measure, a result of the vast increase in the number of persons incarcerated in the United States, which is a secondary consequence of the "war" on drugs.
333. See Lamar Alexander, En Banc Hearings in the Federal Courts of Appeals: Accommodating Institutional Responsibilities (Part I), 40 N.Y.U. L. REV. 563, 578 (1965).
334. Textile Mills Sec. Corp. v. Comm'r, 314 U.S. 326, 334 n.14 (1941). In Lang's Estate v. Commissioner, 97 F.2d 867, 869 & n.2 (9th Cir. 1938), the court had held that it could not sit in panels larger than three.
335. Congress approved the practice in 1948. See Act of June 25, 1948, ch. 646, § 46, 62 Stat. 869, 871 (codified as amended at 28 U.S.C. § 46(c) (2006)).
336. See W. Pac. R.R. Corp. v. W. Pac. R.R. Co., 345 U.S. 247, 250-51 (1953).
337. AMERICAN BAR FOUNDATION, supra note 32;
338. FEDERAL JUDICIAL CENTER, supra note 32;
339. Commission on the Revision of the Federal Court Appellate System, supra note 32, at 206-07;
340. Commission on Structural Alternatives for the Federal Courts of Appeals, supra note 32, at 34-36;
341. Study Group on the Caseload of the Supreme Court, supra note 32, at 574-75. Among the eminent advocates of restructuring the federal judiciary have been American Bar Association presidents (e.g., Bernard Siegel and Leon Jaworski), eminent federal judges (e.g., Carl McGowan, Thurgood Marshall, and Edward Becker), eminent scholars (e.g., Paul Freund, Alexander Bickel, and Maurice Rosenberg) and congressional leaders (e.g., Senator Roman Hruska).
342. Judge Posner has suggested that conflict resolution might be a task to be undertaken by the American Law Institute: The simplification of law was one of the Institute's original goals, and it is one that would be well served by the Institute's undertaking to monitor the thousands of appellate decisions, state and federal, handed down every year for conflicts on technical points of law and to propose solutions that I predict would be welcomed by courts and legislatures. RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY 308-09 (1999).
343. See Erwin N. Griswold, The Need for a Court of Tax Appeals, 57 HARV. L. REV. 1153, 1173 (1944) (arguing that the only "sensible system of court review of tax cases is to have a unified appellate procedure").
344. United States Law Week compiles a list annually. See, e.g., Circuit Splits Recently Noted in Law Week - 4th Quarter 2007, 76 U.S. L. WK. 1381, 1381-84 (2008).
345. See, e.g., Beaulieu v. United States, 497 U.S. 1038, 1038-40 (1990) (White, J., dissenting);
346. Metheny v. Hamby, 488 U.S. 913, 915 (1988) (White, J., dissenting).
347. In 2005, the Judicial Conference presumed to declare which circuit had the right answer to questions of law on which there was disagreement. See Jacob Scott, Comment, Article III En Banc: The Judicial Conference as an Advisory Intercircuit Court of Appeals, 116 YALE L.J. 1625, 1628-31 (2007). This was not an acceptable role for the Conference to play, not least because it had no jurisdiction to decide cases and no "case or controversy" had been presented to it That the Conference nevertheless attempted to provide a solution does signify the reality of the problem of circuit conflict.
348. The contention is sometimes advanced that it is a good thing to let issues of national law "percolate" in the various circuits before the Supreme Court burdens itself with resolving the conflict. See, e.g., California v. Carney, 471 U.S. 386, 400 n.11 (1985) (Stevens, J., dissenting).
349. See generally Cordray & Cordray, supra note 112, at 437-39 (discussing different Justices' views both for and against "percolation").
350. This notion, however, was ridiculed by Justice Rehnquist. William H. Rehnquist, The Changing Role of the Supreme Court, 14 FLA. ST. U. L. REV. 1, 11-12 (1986).
351. Justice White was even more dismissive. See Byron R. White, The Work of the Supreme Court: A Nuts and Bolts Description, 54 N.Y. ST. B.J. 346, 349 (1982);
352. see also Ruth Bader Ginsburg, Remembering Justice White, 74 U. COLO. L. REV. 1283, 1285 (2003) ("Byron White was an 'activist' Justice only in his unswerving view that the Court ought not let circuit splits linger, that it should say what the federal law is sooner rather than later.");
353. Dennis J. Hutchinson, Two Cheers for Judicial Restraint: Justice White and the Role of the Supreme Court, 74 U. COLO. L. REV. 1409, 1415 (2003).
354. Justice O'Connor has also been critical of this type of "percolation" in certain cases. See Johnson v. Texas, 509 U.S. 350, 378-79 (1993) (O'Connor, J., dissenting). No state has opted for the idea of percolation, and it seems unlikely that anyone would propose such a scheme to Congress or any other legislature. Although much empirical work has been done on the Court's selection of cases, no example has yet been found of a legal issue that the Court resolved more wisely because it was left to percolate at the expense of citizens burdened by the continuing uncertainty and the cost of litigation.
355. Sixty-eight percent of the district judges participating in a survey disagreed with the statement, "There is consistency between panels considering die same issue." Paul D. Car-rington, The Obsolescence of the United States Court of Appeals: Roscoe Pound's Structural Solution, 15 J.L. & POL. 515, 519 n.13 (1999)
356. (citing NINTH CIRCUIT JUDICIAL COUNCIL, SURVEY OF DISTRICT COURT JUDGES REGARDING U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT 4 (1987) (conducted by the Office of the Circuit Executive)).
357. See, e.g., Mitu Gulati & C.M.A. McCauliff, On Not Making Law, LAW & CONTEMP. PROBS., Summer 1998, at 157, 181-84 (discussing In re Tseng Labs, Inc., 954 F. Supp. 1024 (E.D. Pa. 1996), aff'd mem., 107 F.3d 8 (3d Cir. 1997), in which the Third Circuit affirmed the lower court's grant of summary judgment without discussing a potential conflict with previous Third Circuit decisions).
358. Anastasoff v. United States, 223 F.3d 898, 905 (8th Cir. 2000) (en banc), vacated as moot, 235 F.3d 1054, 1056 (8th Cir. 2000) (en banc) ("[W]hether unpublished opinions have precedential effect no longer has any relevance for the decision of this tax-refund case.").
359. FED. R. APP. P. 32.1(a).
360. See id. The Court so ordered on April 12, 2006.
361. This observer was Chief Judge John Walker of the Second Circuit. Tony Mauro, Green Light to Cite Unpublished Opinions, LEGAL TIMES, April 19, 2004, at 8.
362. Alex Konzinski, Chief Judge of the Ninth Circuit, testified to the House Judiciary Committee that unpublished opinions are "simply a letter to the parties telling them who won and who lost, and why." Issuing such opinions instead of full-blown rulings requiring many drafts, Kozinski said, "frees us up to spend the time that needs to be spent on published opinions, the ones that actually shape the law." Tony Mauro, Courts Move Forward on Citation Change, LEGAL TIMES, May 26, 2003, at 8 [hereinafter Mauro, Courts Move Forward]. But his "simple letter" is the judicial task - to which shaping the law is a coincidental consequence and not the primary mission of this semi-superlegislature.
363. Mauro, Courts Move Forward, supra note 210.
364. Posner, supra note 18, at 61.
365. See L.A. Powe, Jr., "Marble Palace, We've Got A Problem - With You", in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, supra note 5, at 99, 102.
366. See generally FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS (2007);
367. HARRY T. EDWARDS & LINDA A. ELLIOTT, FEDERAL STANDARDS OF REVIEW: REVIEW OF DISTRICT COURT DECISIONS AND AGENCY ACTIONS (2007) (an extended description of the courts' concerns with the law of appellate jurisdiction).
368. See generally Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459 (2004) (describing a steady decline in both the number of trials and percentage of cases terminated by trial in the American judicial system between 1962 and 2002).
369. United States v. Booker, 543 U.S. 220, 244 (2005) (holding that Federal Sentencing Guidelines are inconsistent with the Sixth Amendment because they require judges to impose sentences based on facts not presented to the jury).
370. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443 (2006). The "policy-was first declared in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24 (1983).
371. In 1985, the Court proclaimed, contrary to its legislative history, that the Act reflected a "congressional desire to enforce agreements into which parties had entered." Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 220 (1985).
372. California law conferring rights on franchisees was made subject to preemption by the Federal Arbitration Act in Southland Corp. v. Keating, 465 U.S. 1, 8 (1984).
373. Federal Arbitration Act of 1925, ch. 213, 43 Stat. 883, (codified as amended at 9 U.S.C. § 1 (2006)).
374. See IAN R. MACNEIL, AMERICAN ARBITRATION LAW: REFORMATION, N ATIONALIZATION, INTERNATIONALIZATION 102-21 (1992).
375. Buckeye Check Cashing, 546 U.S. at 440.
376. Alternative Dispute Resolution Act of 1998, Pub. L. No. 105-315, § 6, 112 Stat. 2293, 2995-96, (codified at 28 U.S.C. § 654 (2006)) (amending the Judicial Improvements and Access to Justice Act, Pub. L. No. 100-702, 102 Stat. 4642 (1988)).
377. 21ST CENTURY DEPARTMENT OF JUSTICE APPROPRIATIONS AUTHORIZATION ACT, Pub. L. No. 107-273, § 11,028, 116 Stat. 1758, 1835-36 (2002) (codified at 15 U.S.C. § 1226 (2006)).
378. This statute overruled Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985).
379. Senators Grassley and Feingold introduced a bill in the Senate that would have provided the same terms for growers of livestock and poultry. See infra note 224. It was reported from committee but never brought to a vote by the full Senate. Library of Congress, THOMAS, http://thomas.loc.gov/cgi- bin/bdquery/z?d110:s221: (last visited Jan. 22, 2009).
380. Fair Contracts for Growers Act of 2007, S. 221, 110th Cong. (2007).
381. See Southland Corp. v. Keating, 465 U.S. 1, 10 (1984) (stating that "Congress . . . withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration").
382. See Press Release, U.S. Senator Russ Feingold, Sen. Feingold, Rep. Johnson Introduce Measure to Preserve Consumer Justice (July 12, 2007), http://feingold.senate.gov/ record.cfm?id=307045.
383. See Stephen C. Yeazell, The Misunderstood Consequences of Modern Civil Process, 1994 WIS. L. REV. 631, 631.
384. First approved by Congress in the Federal Magistrates Act, Pub. L. No. 90-578, 82 Stat. 1107 (1968), (current version at 28 U.S.C. §§ 631-39), then upheld in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).
385. However, Justices White and Powell and Chief Justice Burger found the majority decision upholding the law to have read Article III out of the Constitution. Id. at 113 (White, J., dissenting).
386. FED. R. CIV. P. 53.
387. See James S. DeGraw, Note, Rule 53, Inherent Powers, and Institutional Reform: The Lack of Limits on Special Masters, 66 N.Y.U. L. REV. 800, 801, 808 (1991).
388. Arthur R. Miller, The Pretrial Rush to Judgment: Are the "Litigation Explosion," "Liability Crisis," and Efficiency Cliches Eroding Our Day in Court and Jury Trial Commitments, 78 N.Y.U. L. REV. 982, 1003-07, 1016 (2003);
389. Judith Resnik, Migrating Morphing, and Vanishing: The Empirical and Normative Puzzles of Declining Trial Rates in Courts, 1 J. EMPIRICAL LEGAL STUD. 783, 827, 830 (2004);
390. Stephen C. Yeazell, Getting What We Asked for, Getting What We Paid for, and Not Liking What We Got: The Vanishing Civil Trial, 1 J. EMPIRICAL LEGAL STUD. 943, 963-67 (2004) (discussing the increase of settlements driven by expensive pretrial fact investigation, and the resulting low level of public investment in judicial officers).
391. For an account of the diverse methods of encouraging settlement without trial, see Wayne D. Brazil, A Close Look at Three Court-Sponsored ADR Programs: Why They Exist, How They Operate, What They Deliver, and Whether They Threaten Important Values, 1990 U. CHI. LEGAL F. 303.
392. The extraordinary rise of plea bargaining between the prosecutor and the accused is a major part of this development. See GEORGE FISHER, PLEA BARGAINING'S TRIUMPH: A HISTORY OF PLEA BARGAINING IN AMERICA 2 (2003) ("[A]lthough we can find many worthy accounts of why the jury fell, we must ask instead why plea bargaining triumphed.").
393. FED. r. CIV. P. 56;
394. see Miller, supra note 230, at 1055-56 ("Clearly, Rule 56 has evolved . . . into a powerful tool for judges to control dockets and respond to the supposed 'litigation explosion.'" (footnotes omitted)).
395. Patrick E. Higginbotham, So Why Do We Call Them Trial Courts?, 55 S.M.U. L. REV. 1405 (2002).
396. See supra note 27 and accompanying text.
397. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-88 (1986);
398. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 245-50 (1986);
399. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986);
400. see also Stephen B. Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah?, 1 J. EMPIRICAL LEGAL STUD. 591, 623 (2004).
401. Patricia M. Wald, Summary Judgment at Sixty, 76 TEX. L. REV. 1897, 1917 (1998).
402. Empirical data tends to confirm Wald's account. See Joe S. Cecil et al., A Quarter-Century of Summary Judgment Practice in Six Federal District Courts, 4 J. EMPIRICAL LEGAL STUD. 861 (2007).
403. 127 S. Ct 1955, 1965-69 (2007).
404. Id. at 1983 (Stevens, J., dissenting) (quoting Hosp. Bldg. Co. v. Tr. of Rex Hosp., 425 U.S. 738, 746 (1976)).
405. See, e.g., Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008), cert, denied, 128 S. Ct. 2964 (2008);
406. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315 (3d Cir. 2008). But see Akrieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008).
407. For a graph of the caseload, see Sternberg, supra note 17, at 5.
408. Then-Solicitor General, James M. Beck, testifying on behalf of the legislation at Taft's request, "estimated that the number of cases of public gravity that the Court could decide on the merits was between four hundred and five hundred" per year. Hartnett, supra note 17, at 1646.
409. For recent accounts of the present role of law clerks, see TODD C. PEPPERS, COURTIERS OF THE MARBLE PALACE: THE RISE AND INFLUENCE OF THE SUPREME COURT LAW CLERK 191-205 (2006);
410. ARTEMUS WARD & DAVID L. WEIDEN, SORCERERS' APPRENTICES: 100 YEARS OF LAW CLERKS AT THE UNITED STATES SUPREME COURT 109-49 (2006);
411. Cordray & Cordray, supra note 17, at 791.
412. JOHN G. ROBERTS, JR., 2008 YEAR-END REPORT ON THE FEDERAL JUDICIARY 10 (2008), http://www.supremecourtus.gov/publicinfo/year-end/ 2008year-endreport.pdf. The Chief Justices' year-end reports from 2000 on are available at http://www.supremecourtus. gov/publicinfo/year-end/year-endreports. html (last visited Jan. 25, 2009).
413. ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850s TO THE 1980s, at 60-64 (1983).
414. PEPPERS, supra note 244, at 194 ("As soon as I am confident that my new law clerks are reliable, I take their word and that of the pool memo writer as to the underlying facts and contentions of the parties in the various petitions." (quoting Chief Justice Rehnquist) (footnote omitted));
415. WARD & WEIDEN, supra note 244, at 143-44 (arguing that an increase in cert petitions, a growing reliance by the Justices on the clerks' recommendations, and the cautiousness of clerks when recommending a grant of certiorari have contributed to a decline in grants).
416. PEPPERS, supra note 244, at 31.
417. WARD & WEIDEN, note 244, at 143.
418. Adam Liptak, A Second Justice Opts Out of a Longtime Custom: The "Cert Pool", N.Y. TIMES, Sept. 26, 2008, at A21.
419. For accounts, see RICHARD L. PACELLE, JR., THE TRANSFORMATION OF THE SUPREME COURT'S AGENDA: FROM THE NEW DEAL TO THE REAGAN ADMINISTRATION (1991);
420. PERRY. supra note 114;
421. DORIS MARIE PROVINE, CASE SELECTION IN THE UNITED STATES SUPREME COURT (1980).
422. See RICHARD A. POSNER, HOW JUDGES THINK 269-323 (2008);
423. see also FRANK M. COFFIN, ON APPEAL: COURTS, LAWYERING, AND JUDGING 281-85 (1994).
424. An empirical demonstration is JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993).
425. And increasingly in recent years, the Justices have invoked their own notions of the public good in disregard of the stated aims of legislators expressed by committees or draftsmen who proposed and advocated enactments. See genrally FRANK B. CROSS, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION (2009).
426. WARD & WEIDEN, supra note 244, at 132.
427. Philip Allen Lacovara, The Incredible Shrinking Court, AM. LAW., Dec. 2003, at 53.
428. Byron R. White, Challenges for the U.S. Supreme Court and the Bar: Contemporary Reflections, 51 ANTITRUST L.J. 275, 277 (1982).
429. William J. Brennan, Jr., Some Thoughts on the Supreme Court's Workload, 66 JUDICATURE 230, 231 (1983).
430. This would be especially appropriate if the Justices were limited to eighteen-year terms, as we have previously urged. See supra note 24;
431. see also Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, supra note 5, at 15, 50-51.
432. Estreicher & Sexton, supra note 113.
433. The stated rule is Supreme Court Rule 10. For a discussion of the rule and a critique of its indeterminate articulation of grounds for granting certiorari, see id. at 711-12.
434. See cases cited supra note 202.
435. See supra notes 242-43 and accompanying text
436. The practice is not without difficulty. For a critique, see Aaron-Andrew P. Bruhl, The Supreme Court's Controversial GVRs - And an Alternative, 107 MICH. L. REV. (forthcoming Mar. 2009).
437. See supra note 32.
438. See Commission on Revision of the Federal Court Appellate System, supra note 32, at 236-38 (proposing the creation of the National Court of Appeals);
439. Commission on Structural Alternatives for the Federal Courts of Appeals, supra note 32, at 40-44, 64-66 (proposing organizing the Ninth Circuit Court of Appeals into regional adjudication divisions and authorizing any circuit to establish district court appellate panels);
440. Study Group on the Caseload of the Supreme Court, supra note 32, at 590-95 (proposing the creation of a National Court of Appeals).
441. Judge Richard Arnold, U.S. Court of Appeals for the Eighth Circuit, Address at the Arkansas Bar Foundation Symposium on the Judiciary, in SYMPOSIUM ON THE JUDICIARY 12, 12 (Patricia A. Eables & John P. Gill eds., 1989) (available at the University of Arkansas at Little Rock William H. Bowen School of Law Library).
442. See supra notes 43-45 and accompanying text.
443. See supra note 121 and accompanying text.
444. See NAGEL, supra note 104, at 121-23 (discussing how legal training and practice contribute to lawyers' perception of judicial decisions as occupying a "superior domain of rational thought").
445. In 1975, a national commission concluded that "unnecessary and undesirable uncertainty" concerning federal law was a major problem. Commission on Revision of the Federal Court Appellate System, supra note 32, at 217.
446. Too many unresolved inter-circuit conflicts resulted in differing law being applied in different states. Delay in the resolution of many issues for federal law imposed costs and resulted in "years of uncertainty, confusion and ... forum shopping by litigants." Id. at 218. Since 1975, the number of certiorari petitions filed each year has more than doubled and the total number decisions of all federal courts of appeals has more than tripled.
447. The Supreme Court, which decided about 175 cases a year on the merits in 1975, was then reviewing fewer than one percent of the cases decided by the federal courts of appeals - a percentage that many informed persons thought was inadequate to provide needed supervision and guidance. Today, the Court decides less than one-tenth of one percent of the approximately 10,000 filings per year from all federal and state courts, nearly all of which are certiorari petitions. See SUPREME COURT OF THE U.S., THE JUSTICES' CASELOAD, http://www.supremecourtus.gov/about/jus- ticecaseload.pdf (last visited Jan. 30, 2009);
448. see also Posner, supra note 18, at 36-37.
449. For reflections on the possible uses of electronic technology to establish visible contact between judges and parties, see Paul D. Carrington, Virtual Civil Litigation: A Visit to John Bunyan's Celestial City, 98 COLUM. L. REV. 1516, 1529-31 (1998).
450. Sternberg, supra note 17, at 14.
451. Arthur T. Vanderbilt, Introduction to THE NATIONAL CONFERENCE OF JUDICIAL COUNCILS, MINIMUM STANDARDS OF JUDICIAL A DMINISTRATION, at xvii, xix (Arthur T. Vanderbilt ed., 1949).