The structural case for vertical maximalism

Cornell Law Review

Volumn 95, Issue 1, 2009, Pages 1-59

  Grove, Tara Leigh ^a  

^a FLORIDA STATE UNIVERSITY   (United States)

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EID: 73949104780     PISSN: 00108847     EISSN: None     Source Type: Journal    
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References (505)

1. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Coram. on the Judiciary, 109th Cong. 55 (2005) (statement of John G. Roberts, Jr., Nominee to Be Chief Justice of the United States) [hereinafter Confirmation Hearing].
2. Id. at 56.
3. See, e.g., Erwin Chemerinsky, Seeing the Emperor's Clothes: Recognizing the Reality of Constitutional Decision Making, 86 B.U. L. REV. 1069, 1069 (2006) (stating that "it is hard to think of a less apt analogy");
4. James E. Ryan, Does It Take a Theory? Originalism, Active Liberty, and Minimalism, 58 STAN. L. REV. 1623, 1646 (2006)
5. (reviewing STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005);
6. CASS R. SUNSTEIN, RADICALS IN ROBES: WHY EXTREME RIGHT-WING COURTS ARE WRONG FOR AMERICA (2005)) (questioning the comparison).
7. See KEN KAISER & DAVID FISHER, PLANET OF THE UMPS: A BASEBALL LIFE FROM BEHIND THE PLATE 185-86 (2003) (stating that "[t]he strike zone as defined in the rule book ⋯ is a myth" because "[n]o two umpires have the same strike zone[]," and further explaining that "[t]he size of a man's strike zone doesn't really matter ⋯ what does matter is that it's exactly the same for both teams and that it's consistent from the first pitch to the last out").
8. See infra notes 14-26 and accompanying text.
9. See, e.g., Hodel v. Indiana, 452 U.S. 314, 331-32 (1981) ("Social and economic legislation ⋯ that does not employ suspect classifications or impinge on fundamental rights ⋯ carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality. ⋯ This is a heavy burden ⋯.").
10. See, e.g., Regions Hosp. v. Shalala, 522 U.S. 448, 457 (1998) ("If the agency's reading fills a gap or defines a term in a reasonable way in light of the Legislature's design, we give that reading controlling weight, even if it is not the answer 'the court would have reached if the question initially had arisen in a judicial proceeding.'" (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.11 (1984))).
11. See infra notes 234-47 and accompanying text.
12. Indeed, much of the recent literature on the structure of the judiciary has focused on Congress's authority to regulate Supreme Court jurisdiction. See infra note 217 and accompanying text.
13. Cf. David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190, 190 (1988) (noting that Miranda v. Arizona, 384 U.S. 436 (1966), was criticized as "illegitimate" because it established a broad prophylactic rule, but urging that such broad decisions "are not exceptional ⋯ but are a central and necessary feature of constitutional law").
14. For a brief discussion of the relationship between vertical maximalism and dicta, see infra note 138.
15. See Cass R. Sunstein, Problems with Minimalism, 58 STAN. L. REV. 1899, 1907 (2006) ("[T]he difference between narrowness and width is one of degree rather than kind. ⋯").
16. See infra Part I.B (discussing doctrines that have been criticized by jurists and scholars as unduly narrow).
17. See CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT ix (1999).
18. Professor Sunstein suggested early on that "minimalism" offers an alternative to what he describes as "maximalist" theories of statutory interpretation (textualism) and constitutional interpretation (originalism). See id. at 210-11, 234-35. More recendy, he has contrasted minimalism with three other theories of constitutional interpretation, which he dubs perfectionism (an approach that offers broad protection of individual liberty), major-itarianism (judicial restraint), and fundamentalism (originalism). See SUNSTEIN, supra note 3, at 25-51;
19. id. at 27-30, 50 (explaining that, in constitutional interpretation, minimalists not only favor narrow and undertheorized rulings but also respect precedent and generally "believe that judges should give the benefit of the doubt to the elected branches"). As discussed below, my theory of vertical maximalism is a theory of constitutional and statutory implementation. Accordingly, I do not advocate any particular form of interpretation. See infra note 42 and accompanying text.
20. SUNSTEIN, supra note 14, at 3-4 (using this definition for "decisional minimalism").
21. Id. at 10.
22. Id. at 13;
23. see SUNSTEIN, supra note 3, at 27 ("As a matter of principle, minimalists ⋯ favor shallow rulings over deep ones, in the sense that they seek to avoid taking stands on the biggest and most contested questions of constitutional law."). For a brief discussion of the need for some meoretical depth, see infra note 44 and accompanying text.
24. See SUNSTEIN, supra note 14, at 47;
25. Cass R. Sunstein, Burkean Minimalism, 105 MICH. L. REV. 353, 364 (2006) ("For any official, it can be extremely burdensome to generate a broad rule in which it is possible to have much confidence. Narrow decisions might therefore reduce the costs of decision ⋯.").
26. See SUNSTEIN, supra note 14, at 47.
27. See id. at 49 ("If it is wrong, a wide ruling may have especially high error costs, because it will affect many subsequent cases.").
28. See Sunstein, supra note 12, at 1915.
29. See SUNSTEIN, supra note 14, at 118 (claiming, with respect to affirmative action, that the Court's "complex, rule-free, highly particularistic opinions have had the salutary consequence of helping to stimulate public processes and directing the citizenry toward more open discussion of underlying questions of policy and principle").
30. See Sunstein, supra note 12, at 1903, 1917 (opposing "any general preference for narrow, case-by-case rulings" and instead advocating "a case-by-case inquiry into whether case-by-case decisions are desirable").
31. See Sunstein, supra note 19, at 362 ("[A]mong reasonable alternatives, minimalists show a persistent preference for the narrower options, especially in cases at the frontiers of constitutional law.").
32. See, e.g., Ashutosh Bhagwat, Separate But Equal?: The Supreme Court, the Lower Federal Courts, and the Nature of the "Judicial Power", 80 B.U. L. REV. 967, 1000 (2000) (urging the Court to engage in "case-by-case formulation of narrow rules necessary to resolve particular disputes");
33. Christopher J. Peters, Assessing the New Judicial Minimalism, 100 COLUM. L. REV. 1454, 1458-59 (2000) (criticizing minimalism insofar as it counsels deference to the political branches but expressly embracing the aspect of minimalism at issue here- "procedural minimalism" - which "counsels ⋯ limiting the binding impact of [each] decision as closely as possible to the particular facts of the case");
34. Richard A. Posner, Against Constitutional Theory, 73 N.Y.U. L. REV. 1, 9 (1998) (stating that he "like[s] Sunstein's [minimalist] approach");
35. Dru Stevenson, Judicial Incrementalism: A Reply to Professor Sunstein, 34 OHIO N.U. L. REV. 191, 192-93 (2008) (advocating "Sunstein's gradualist approach" on economic free-market grounds). Although Chief Justice Roberts "resist[ed]" labeling himself as a "minimalist" during his confirmation hearing, see Confirmation Hearing, supra note 1, at 158, his public statements make clear that he favors narrow decisions, see Chief Justice Says His Goal Is More Consensus on Court, N.Y. TIMES, May 22, 2006, at A16 [hereinafter More Consensus on Court] (reporting on Chief Justice Roberts's address to Georgetown University law graduates and quoting him as saying: "If it is not necessary to decide more to [dispose of] a case, then in my view it is necessary not to decide more "); infra note 315 and accompanying text.
36. See JAMES E. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY: THE CASE OF AUTONOMY 163-67 (2006);
37. Neal Devins & Alan Meese, Judicial Review and Nongeneralizable Cases, 32 FLA. ST. U. L. REV. 323, 353 (2005);
38. Neil S. Siegel, A Theory in Search of a Court, and Itself: fudicial Minimalism at the Supreme Court Bar, 103 MICH. L. REV. 1951, 2015-17 (2005) ("[M]inimalism ⋯ would eviscerate an essential part of the Supreme Court's role.").
39. See SUNSTEIN, supra note 3, at 44 (stating that minimalists "are not systematic believers in [judicial] restraint" but are "willing to be [judicial] activists too").
40. 384 U.S. 436, 444-45 (1966) (requiring police to give specific warnings before interrogating any suspect in custody).
41. 377 U.S. 533, 568 (1964) (establishing the one-person/one-vote rule for legislative apportionment).
42. See FLEMING, supra note 27, at 163-67 (suggesting that "Sunstein's argument for judicial minimalism ⋯ amount[s] to a troubling withering away of the proper role ⋯ of courts as vindicators of constitutional rights");
43. Devins & Meese, supra note 27, at 353 (asserting that minimalism "unduly limits the Court's power to shape constitutional values");
44. Siegel, supra note 27, at 2015-16 ("[T]here are times when the Court should ⋯ insist that the Constitution's protections be vindicated robustly, not narrowly and shallowly.").
45. See FLEMING, supra note 27, at 167-68 (doubting that "judicial minimalism will promote democratic deliberation ⋯. It may simply permit the political processes ⋯ to trample on or neglect basic principles of liberty and equality");
46. Siegel, supra note 27, at 2010 (doubting that "minimalism significantly advances [Sunstein's] deliberative democratic project" because it may "simply postpone ⋯ questions ⋯ for future litigation");
47. Mark Tushnet, How to Deny a Constitutional Right: Reflections on the Assisted-Suicide Cases, 1 GREEN BAG 2D 55, 59-60 (1997) (criticizing minimalism to the extent that it "calls on judges to make precisely those judgments that its premises [about judicial modesty and institutional limitations] assert judges should not make");
48. Neal Devins, The Democracy-Forcing Constitution, 97 MICH. L. REV. 1971, 1984-85 (1999) (reviewing SUNSTEIN, supra note 14) (noting that "[t]he Court's power to alter the course of democratic deliberation is premised on the belief that people pay attention to" the reasoning of Court decisions and expressing doubt that the public or even legislators "pay much attention to court decisionmaking").
49. See Jeffrey Rosen, Foreword, 97 MICH. L. REV. 1323, 1330 (1999) ("When faced with a narrow, shallow ⋯ decision ⋯ lower courts may literally be at a loss about what the opinion means.");
50. Siegel, supra note 27, at 2006 (doubting mat minimalism will reduce "overall costs" because "[p]re-empirically, it appears ⋯ mat whatever costs the Court saves ⋯ by taking a minimalist path will be outweighed by the costs incurred by litigants, lower courts, and political bodies").
51. See SUNSTEIN, supra note 3, at 29 (noting that "narrow rulings can create big problems for lower courts" but arguing that minimalism's benefits often outweigh such costs).
52. See Sheldon Gelman, The Hedgehog the Fox, and the Minimalist, 89 GEO. L.J. 2297, 2305 (2001) (reviewing SUNSTEIN, supra note 14) (asserting that minimalist decisions cannot simply be narrow but "must suggest - or at least ⋯ not contradict - the notion that other applications of a right remain candidates for recognition in future cases");
53. see also Jonathan T. Molot, Principled Minimalism: Restriking the Balance Between Judicial Minimalism and Neutral Principles, 90 VA. L. REV. 1753, 1779 (2004) (observing that minimalism requires shallowness because "[t]oo much principle would foreclose too many options" in future cases).
54. See, e.g., Sanchez-Llamas v. Oregon, 548 U.S. 331, 354 (2006) (stating that treaty interpretation under federal law "'is emphatically the province and duty of the judicial department,' headed by the 'one supreme Court' established by the Constitution" (emphasis added) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)));
55. THE FEDERALIST No. 82, at 494 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (describing the Court as "that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions");
56. Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817, 873 (1994) (urging that the Court's "essential function" is to "provid[e] general leadership in defining federal law"); infra notes 248-82 and accompanying text (discussing the Judiciary Acts of 1925 and 1988, which gave the Court discretionary appellate review power, precisely so that it could better perform its role of defining the content of federal law).
57. Rivers v. Roadway Express, Inc., 511 U.S. 298, 312 (1994) (emphasis added).
58. Cf. Henry P. Monaghan, The Supreme Court, 1974 Term - Foreword: Constitutional Common Law, 89 HARV. L. REV. 1, 2-4 (1975) ("[A] surprising amount of what passes as authoritative constitutional 'interpretation' is best understood as ⋯ a substructure of ⋯ rules drawing their inspiration and authority from, but not required by, various constitutional provisions ⋯.").
59. Caminker, supra note 36, at 866.
60. Jeffrey Rosen, John Roberts, Centrist? Partial Solution, THE NEW REPUBLIC, Dec. 11, 2006, at 8.
61. Sunstein, supra note 19, at 362.
62. One cannot, of course, entirely divorce the implementation of a legal principle from its interpretation. In some contexts, the Supreme Court's interpretation of the legal principle may exclude certain "maximal" rulings. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (concluding that due process requires courts to engage in a balancing test to determine whether an individual is entitled to a hearing before the government terminates benefits, rather than adopting a bright-line rule mat would require such hearings in all cases). This is another reason why vertical maximalism is an aspirational concept. The institutional constraints on the Court, as well as its views of the merits of the underlying issue, may rule out some maximal options. I nevertheless separate implementation from interpretation to underscore that my theory of vertical maximalism should be compatible with a variety of interpretive approaches.
63. Kathleen M. Sullivan, The Supreme Court, 1991 Term - Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 69 (1992).
64. For example, the structural arguments below may suggest that the Court should adopt what Heather Gerken has described as "intermediary theories" or "mediating principles," which help courts "figur[e] out what [broad constitutional protections] mean[] in a given context." Heather K. Gerken, The Costs and Causes of Minimalism in Voting Cases: Baker v. Carr and Its Progeny, 80 N.C. L. REV. 1411, 1414 (2002). The Court should perhaps articulate such "mediating principles" whenever such principles are needed to clarify the boundaries of the Court's operative doctrine for lower federal and state courts. For now, however, I bracket this issue.
65. See Siegel, supra note 27, at 1956.
66. See, e.g., Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 805-06 (1986) (alleging that the defendant was negligent under state law because it had violated federal food and drug law);
67. see also id. at 817 (finding no federal question jurisdiction over the claim).
68. Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 821 (1988) (Stevens, J., concurring)).
69. Id.
70. Id. at 314-15, 320 (upholding federal question jurisdiction over the state law claim because its validity depended on whether the Internal Revenue Service had provided the plaintiff with adequate notice of his tax delinquency).
71. 241 U.S. 257 (1916);
72. see Linda R. Hirshman, Whose Law Is It, Anyway? A Reconsideration of Federal Question Jurisdiction over Cases of Mixed Slate and Federal Law, 60 IND. L.J. 17, 72 (1984) (advocating a "return[] to the straightforward analysis set forth by Justice Holmes");
73. Douglas D. McFarland, The True Compass: No Federal Question in a State Law Claim, 55 U. KAN. L. REV. 1, 58-59 (2006) (similarly advocating a "return to the powerful and predictable rule of American Well Works");
74. see also Daniel J. Meltzer, Jurisdiction and Discretion Revisited, 79 NOTRE DAME L. REV. 1891, 1913-15 (2004) (questioning whether lower courts can apply the Court's standard and suggesting a possible return to the "bright-line rule ⋯ of Justice Holmes").
75. Justice Clarence Thomas recently expressed support for this approach. See Grable, 545 U.S. at 321 (Thomas, J., concurring).
76. See Am. Well Works Co., 241 U.S. at 260.
77. See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 819-20 (1986) (Brennan, J., dissenting) (asserting mat federal courts should have jurisdiction when the plaintiffs claim "depends upon the construction or application of the Constitution or laws of the United States" as long as that federal issue "rests upon a reasonable foundation" (citation and internal quotation marks omitted));
78. Martin H. Redish, Reassessing the Allocation of Judicial Business Between State and Federal Courts: Federal Jurisdiction and "The Martian Chronicles", 78 VA. L. REV. 1769, 1794 (1992) (arguing that courts should have federal question jurisdiction when either "the cause of action is itself federally-created or the decision ⋯ may turn on the interpretation or application of federal law" (footnote omitted)).
79. But see David L. Shapiro, Reflections on the Allocation of Jurisdiction Between State and Federal Courts: A Response to "Reassessing the Allocation of Judicial Business Between State and Federal Courts", 78 VA. L. REV. 1839, 1841-42 (1992) (criticizing this rule and advocating a more standard-like approach to federal question jurisdiction).
80. See Note, Mr. Smith Goes to Federal Court: Federal Question Jurisdiction over Slate Law Claims Post-Merrell Dow, 115 HARV. L. REV. 2272, 2280 (2002).
81. See Deborah W. Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 FORDHAM L. REV. 49, 107-16 & n.466 (2007) (describing challenges in California, Missouri, North Carolina, Florida, Tennessee, Kentucky, and Maryland, and noting that some state courts stayed executions).
82. 128 S. Ct. 1520 (2008).
83. See id. at 1525-27.
84. See Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us, 63 OHIO ST. L.J. 63, 97-98 (2002).
85. See Baze, 128 S. Ct. at 1527, 1535;
86. Denno, supra note 57, at 98.
87. See Denno, supra note 57, at 98.
88. Note, A New Test for Evaluating Eighth Amendment Challenges to Lethal Injections, 120 HARV. L. REV. 1301, 1302-03 (2007).
89. See Brief for Petitioners at 28, Baze, 128 S. Ct. 1520 (No. 07-5439).
90. Baze, 128 S. Ct. at 1532.
91. See id. at 1537-38.
92. Id. at 1532.
93. See id. at 1537 (stating that, to receive a stay of execution, an inmate must "establish[] that the State's lethal injection protocol creates a demonstrated risk of severe pain" and "that the risk is substantial when compared to the known and available alternatives" and suggesting that "[a] State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard").
94. Id.
95. Id. at 1542 (Stevens, J., concurring in the judgment).
96. Id. at 1562 (Thomas, J., concurring in the judgment).
97. Mark Sherman, Following Year of Division, Supreme Court Avoids 5-4 Splits, ASSOCIATED PRESS, May 10, 2008, LexisNexis Academic (quoting Dean Chemerinsky).
98. For example, a Fourth Circuit panel issued a divided opinion applying Baze to Virginia's lethal injection protocol. See Emmett v. Johnson, 532 F.3d 291 (4th Cir. 2008). The majority concluded that "Virginia's protocol for lethal injection is substantially similar to that approved by the Supreme Court in Kentucky,"
99. id. at 308, while the dissent found significant factual distinctions, see id. at 309 (Gregory, J., dissenting) (emphasizing that, while Kentucky uses three grams of the initial painkiller, Virginia uses only two grams). Similar challenges have been raised in Delaware federal district court and Texas state court See Randall Chase, Attorneys Say Delaware Execution Went Bad, ASSOCIATED PRESS, June 23, 2008, LexisNexis Academic (noting a federal class action involving "whether Delaware's lethal injection protocol is significantly different from Kentucky's");
100. Rosanna Ruiz, AG Says Injection Question Settled; Supreme Court in April Upheld Execution Method Killer Is Contesting, HOUSTON CHRON., June 7, 2008, LexisNexis Academic (observing that, in a case before the Texas Court of Criminal Appeals, counsel for Texas claimed that the validity of its lethal injection protocol was "fully disposed" of by Baze, while counsel for the inmate asserted that "[i]t's a misstatement that Kentucky's protocol is exactly like Texas' [protocol]").
101. Justice Thomas suggested an even broader rule: any method of execution is constitutional unless a state "deliberately designed [it] to inflict pain." Baze, 128 S. Ct. at 1556 (Thomas, J., concurring in the judgment).
102. See id. at 1543-44 (Stevens, J., concurring in the judgment).
103. Justice Stevens stated that, in an appropriate case, he would vote that capital punishment itself violates the Eighth Amendment. See id. at 1551.
104. He nevertheless concurred in the judgment because he believed that, under the Court's precedents, "the evidence adduced by petitioners fail[ed] to prove that Kentucky's lethal injection protocol violates the Eighth Amendment."
105. Id. at 1552.
106. Injustice Stevens's view, the State had failed to provide a legitimate basis for using the paralytic agent. See id. at 1544 ("Whatever minimal interest there may be in ensuring that a condemned inmate dies a dignified death, and that witnesses to the execution are not made uncomfortable ⋯ is vastly outweighed by the risk that the inmate is actually experiencing excruciating pain that no one can detect.").
107. Id. at 1570-71 (Ginsburg, J., dissenting).
108. Supra note 69 and accompanying text.
109. 28 U.S.C. § 1350 (2006).
110. See Ryan Goodman & Derek P. Jinks, Filartiga's Firm Footing: International Human Rights and Federal Common Law, 66 FORDHAM L. REV. 463, 465-66 (1997).
111. 630 F.2d 876 (2d Cir. 1980).
112. See id. at 880, 887-88.
113. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 775 (D.C. Cir. 1984) (Edwards, J., concurring).
114. 542 U.S. 692 (2004).
115. See id. at 698-99, 736.
116. See id. at 697-98.
117. The plaintiff was acquitted of the criminal charges before filing suit.
118. Id. at 698.
119. See id. at 729.
120. Id. at 732.
121. Id. These historical paradigms were piracy, violations of safe conducts, and harms to ambassadors. Id.
122. Id. at 733 n.21 (emphasis added).
123. See id. at 725, 727-28.
124. Id. at 727.
125. Id. at 733 n.21.
126. Id. The suits allege that the corporations "participated in[] or abetted" the apartheid regime. Id. For a discussion of the apartheid litigation, see infra notes 145-49 and accompanying text
127. Sosa, 542 U.S. at 733 n.21.
128. Id. at 738.
129. Id. at 750-51 (Scalia, J., concurring in part and concurring in the judgment).
130. Id. at 747;
131. see id. at 748 (similarly predicting a "direct[] ⋯ confrontation with the political branches").
132. Compare Martin S. Flaherty, The Future and Past of U.S. Foreign Relations Law, 67 LAW & CONTEMP. PROBS., Autumn 2004, at 169, 173 (urging that "[d]espite an excess of cautionary rhetoric," the Court "guaranteed that the federal judiciary's duty to engage with international legal standards in ATS suits would continue"), and Pamela J. Stephens, Spinning Sosa: Federal Common Law, the Alien Tort Statute, and Judicial Restraint, 25 B.U. INT'L L.J. 1, 3 (2007) ("[W]hile the Court employs language of judicial restraint ⋯, its actual holding and the test it adopted foretell a less restrained use of customary international law ⋯."),
133. with Curtis A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 HARV. L. REV. 869, 891-92 (2007) ("[T]he Court in Sosa strongly suggested that ⋯ courts should discern and apply [customary international law] more carefully and cautiously than many lower courts did prior to Sosa."),
134. and Eugene Kontorovich, Implementing Sosa v. Alvarez-Machain: What Piracy Reveals About the Limits of the Alien Tort Statute, 80 NOTRE DAME L. REV. 111, 115, 156-57 (2004) (asserting that, given the Court's demand for specificity in Sosa, human rights violations - including war crimes, genocide, and torture - are not actionable under the ATS).
135. See Benjamin Berkowitz, Sosa v. Alvarez-Machain: United States Courts as Forums for Human Rights Cases and the New Incorporation Debate, 40 HARV. C.R.-C.L. L. REV. 289, 295 (2005) (noting "the Court's failure to articulate clear standards to guide litigants and the lower courts");
136. William A. Fletcher, International Human Rights in American Courts, 93 VA. L. REV. 653, 672 (2007) (observing that Sosa "has left us with more questions than answers");
137. Donald J. Kochan, Sovereignty and the American Courts at the Cocktail Party of International Law: The Dangers of Domestic Judicial Invocations of Foreign and International Law, 29 FORDHAM INT'L L.J. 507, 535 (2006) (asserting that Sosa did not provide "much guidance to lower courts");
138. see also Bradley, Goldsmith & Moore, supra note 96, at 898, 900-01 (noting the "lack of clarity" in various parts of the Court's decision).
139. See text accompanying notes 85 and 93 supra.
140. See Sosa, 542 U.S. at 743-44 (Scalia, J., concurring in part and concurring in the judgment). The majority agreed that the ATS was only a grant of jurisdiction and seemed to agree that most jurisdictional statutes do not permit federal courts to create common law causes of action. See id. at 713-14, 731 n.19 (majority opinion) (stating that its decision did not "imply that every grant of [federal] jurisdiction ⋯ carries with it an opportunity to develop common law"). The majority nevertheless found that courts could do so under the ATS. See id.
141. In using the phrase "widely recognized violation," I mean to incorporate (as a threshold requirement) the Court's demand that the norm be "accepted" and "specific[]." Sosa, 542 U.S. at 725.
142. See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844, 845, 847-48 (11th Cir. 1996).
143. Courts had also accepted claims of summary execution. See Xuncax v. Gramajo, 886 F. Supp. 162, 184-85 (D. Mass. 1995).
144. Both claims are now expressly covered by the Torture Victim Protection Act of 1991, which allows citizens and aliens to bring suit. See Pub. L. No. 102-256, 106 Stat 73 (1992) (codified at 28 U.S.C. § 1350 (2006)).
145. See, e.g., Kadic v. Karadžić, 70 F.3d 232, 241-42 (2d Cir. 1995).
146. See, e.g., Doe v. Islamic Salvation Front, 993 F. Supp. 3, 5-6, 8 (D.D.C. 1998).
147. See, e.g., Kadic, 70 F.3d at 242-43;
148. see also Goodman & Jinks, supra note 77, at 498 (observing that it is "settled beyond question" that conduct such as torture and genocide violates customary international law).
149. See, e.g., Hamid v. Price Waterhouse, 51 F.3d 1411, 1418 (9th Cir. 1995);
150. Cohen v. Hartman, 634 F.2d 318, 319-20 (5th Cir. Unit B Jan. 1981).
151. See, e.g., Guinto v. Marcos, 654 F. Supp. 276, 280 (S.D. Cal. 1986) (holding that "a violation of the First Amendment right of free speech" is not actionable under the ATS).
152. But see Estate of Rodriquez v. Drummond Co., 256 F. Supp. 2d 1250, 1262-64 (N.D. Ala. 2003) (finding that interference with the "rights to associate and organize" may be actionable).
153. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 888 n.23 (2d Cir. 1980) (noting that even "'wilful' negligence[] does not constitute a law of nations violation" (quoting Benjamins v. British European Airways, 572 F.2d 913, 916 (2d Cir. 1978)));
154. Goodman & Jinks, supra note 77, at 509 (observing that certain claims "fall outside the well-accepted scope of federal [customary international law]," including "expropriation of property, fraud, ⋯ free speech, libel, child custody law, and financial misconduct" (footnotes omitted)).
155. See infra notes 160-62 and accompanying text.
156. Fletcher, supra note 97, at 671.
157. See supra notes 19-21 and accompanying text (discussing institutional justifications for minimalism).
158. See supra notes 47-49 and accompanying text.
159. See Note, supra note 53.
160. See Meltzer, supra note 50, at 1913 (noting that the study examined only "reported appeals").
161. In institutional terms, an "error" depends on a given individual's jurisprudential theory or set of values. See ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION 77 (2006) (observing that "people might dispute" what constitutes a "mistake!]" or an "injustice[]," given that "[o]ne person's error might be another's fidelity to law").
162. Baze v. Rees, 128 S. Ct. 1520, 1542 (2008) (Stevens, J., concurring in the judgment).
163. See supra note 70 and accompanying text.
164. Cf. VERMEULE, supra note 114, at 166-67 (noting that "'[d]ecision costs' is a broad rubric that might encompass the direct (out-of-pocket) costs of litigation to litigants and the judicial bureaucracy" as well as "the costs to lower courts of implementing and applying doctrines developed at higher levels").
165. Compare 28 U.S.C. § 1254(1) (2006) (providing the Supreme Court with discretionary certiorari jurisdiction), with 28 U.S.C. § 1291 ("The courts of appeals ⋯ shall have jurisdiction of appeals from all final decisions of the district courts of the United States ⋯ except where a direct review may be had in the Supreme Court.").
166. See infra note 306 (providing statistics on the large caseload in the federal district courts).
167. See, e.g., Devins & Meese, supra note 27, at 327 (noting that "[u]nlike legislators, who can ⋯ hold[] hearings, tak[e] polls, ⋯ and visit[] constituents," "judges are confined to 'the record'" in the case).
168. See A. Christopher Bryant & Timothy J. Simeone, Remanding to Congress: The Supreme Court's New "On the Record" Constitutional Review of Federal Statutes, 86 CORNELL L. REV. 328, 385-87 (2001) (discussing congressional fact-finding methods); supra note 120.
169. See, e.g., Pearson v. Callahan, 128 S. Ct. 1702, 1702-03 (2008) (directing the parties to brief and argue "[i]n addition to the questions presented by the petition ⋯ 'Whether the Court's decision in Saucierv. Katz, [533 U.S. 194 (2001), which governed consideration of qualified immunity claims] should be overruled?'").
170. See Devins & Meese, supra note 27, at 354 (asserting that, by allowing issues to percolate in the lower courts, the Court can help ensure that when it takes up an issue, "it will do so at a time when it is better positioned both to speak clearly and to make an informed decision");
171. Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883, 915 (2006) (stating that the Court can "delay[]" ruling on an issue "until there is a fair amount of lower court experience").
172. See Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. PA. L. REV. 743, 744, 750 (2000) (reporting, based on their study of Supreme Court cases from 1946 to 1995, that "[i]n recent years, one or more amicus briefs have been filed in 85% of the Court's argued cases" and noting the claim that amicus briefs provide "valuable new information" to the Court).
173. The filings on Westlaw suggest that, at the merits stage in Sosa, the Court received twelve amicus briefs supporting the respondent Alvarez (and thus asserting that new claims should be allowed under the ATS). The Court received four private amicus briefs, as well as a brief from the United States,
174. See, e.g., Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Inside the Judicial Mind, 86 CORNELL L. REV. 777, 784 (2001) (finding, based on their study of 167 federal magistrates, that cognitive biases "influenced [those judges'] decision-making processes");
175. Jeffrey J. Rachlinski, Bottom-Up Versus Top-Down Lawmaking, 73 U. CHI. L. REV. 933, 941 (2006) (noting that "[a]spects of an individual case that ⋯ invoke sympathy" may affect judicial decisions).
176. See Schauer, supra note 123, at 884 (arguing that this psychological research calls into question "the entire 'merit' of lawmaking in common law fashion").
177. See, e.g., Devins & Meese, supra note 27, at 354-55 (noting that the Court can, to some degree, compensate for the distorting effects of litigation by letting issues percolate and then relying on information in lower court rulings).
178. See id. at 336-51 (urging that the Court's affirmative action and Establishment Clause cases reflect these cognitive biases);
179. Schauer, supra note 123, at 903 (asserting that "the problem exists even in the Supreme Court").
180. See VERMEULE, supra note 114, at 4 (arguing in favor of majoritarianism largely on institutional grounds). Legislatures are less subject to the case-centered cognitive biases that affect courts because, in enacting statutes, they do not typically have before them only a single factual scenario. Cf. Jeffrey J. Rachlinski, Rulemaking Versus Adjudication: A Psychological Perspective, 32 FLA. ST. U. L. REV. 529, 538 (2005) ("[A]djudication necessarily entails a single-case perspective, which might blind the decisionmaker to the broader policy implications.").
181. As discussed, some scholars have criticized minimalism, precisely because it discourages the Court from issuing broad decisions on important questions of constitutional law. See supra notes 27-31 and accompanying text.
182. Indeed, Justice Samuel Alito recently noted the (potentially) endogenous effects of the Court's capital punishment jurisprudence. See Kennedy v. Louisiana, 128 S. Ct. 2641, 2665-66 (2008) (Alito, J., dissenting) (asserting that Coker v. Georgia, 433 U.S. 584 (1977), which invalidated the death penalty for the rape of an adult woman, "stunted legislative consideration of the question whether the death penalty" might be valid for the "targeted offense" of child rape, in part because many state courts had construed Coker to preclude the death penalty for all rape crimes).
183. Cf. John F. Manning, Constitutional Structure and Statutory Formalism, 66 U. CHI. L. REV. 685, 686 (1999) ("[I]t is perhaps premature to pronounce that the only, or even the most important, remaining assessment of formalism is factual.").
184. Cf. VERMEULE, supra note 114, at 68 ("The choice of legal form has important effects on the allocation of decisionmaking authority.").
185. See FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE- BASED DECISION-MAKING IN LAW AND IN LIFE 182-83 (1991).
186. See id.;
187. Frederick Schauer, Precedent, 39 STAN. L. REV. 571, 576 (1987).
188. The effectiveness of precedent setting, of course, depends on the willingness of lower courts to comply with Supreme Court decisions. For purposes of this analysis, I assume that lower courts do endeavor to abide by the Court's rulings - an assumption that is supported by some empirical evidence. See, e.g., John Gruhl, The Supreme Court's Impact on the Law of Libel Compliance by Lower Federal Courts, 33 W. POL. Q. 502, 517-19 (1980) (finding substantial lower court compliance with the Court's libel decisions);
189. Donald R. Songer, The Impact of the Supreme Court on Trends in Economic Policy Making in the United States Courts of Appeals, 49 J. POL. 830, 838-39 (1987) (finding compliance with labor and antitrust decisions). This assumption also accords with the observations of other scholars.
190. See, e.g., San-ford Levinson, On Positivism and Potted Plants: "Inferior" Judges and the Task of Constitutional Interpretation, 25 CONN. L. REV. 843, 847 (1993) ("'Inferior' judges know their place, as it were, which is the enforcement of the decisions of superiors, whatever their own views.").
191. As noted, I do not seek to determine what constitutes the "holding" versus "dicta" in a judicial precedent. See supra note 11 and accompanying text But a presumption in favor of vertical maximalism should not require the Supreme Court to dispense with the distinction. When the Court declares a broad principle to decide a case, such as the trimester framework in Roe v. Wade, 410 U.S. 113, 164-65 (1973), that broad (maximal) principle is generally viewed as part of the holding of the case. But that does not mean there is no distinction between holding and dicta. For example, if the Court heard an antitrust case involving horizontal price fixing, it might issue a broad (maximal) holding prohibiting all such conduct. But if the Court went on in that case to opine about the validity of vertical resale price maintenance agreements, that discussion would be dicta because the latter issue would be in no way presented by the case.
192. For discussions of the distinction between holding and dicta, see Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 STAN. L. REV. 953, 1065 (2005) ("A holding consists of those propositions along the chosen decisional path or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta.");
193. Michael C. Dorf, Dicta and Article III, 142 U. PA. L. REV. 1997, 1998 (1994) (advocating "a view of the holding/dictum distinction that attributes special significance to the rationales of prior cases, rather than just their facts and outcomes").
194. Schauer, supra note 136, at 594.
195. Id. at 594-95.
196. See SCHAUER, supra note 135, at 184 (noting that, if "the first (precedent) case contains no generalization, the decision-maker in the second (instant) case creates the generalization at that time").
197. See id. (stating that a process that allows the second court to determine the meaning of the first court's precedent "is substantially non-constraining").
198. Sosa v. Alvarez-Machain, 542 U.S. 692, 727, 733 n.21 (2004).
199. Id. at 733 n.21.
200. See Ntsebeza v. Daimler AG (In re S. African Apartheid Litig.), 346 F. Supp. 2d 538, 553-54 (S.D.N.Y. 2004) (noting the federal government's claim that the suit would cause "tension" with South Africa and stating that "[a]s the Sosa Court made clear, these opinions as to the foreign relations consequences of this action certainly deserve great weight").
201. See Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 264 (2d Cir. 2007).
202. Id. at 261 n.9 (quoting Sosa, 542 U.S. at 733 n.21).
203. Id.
204. The Court stated that, after four Justices recused themselves, it lacked a quorum to rule on the matter. See Am. Isuzu Motors, Inc. v. Ntsebeza, 128 S. CT. 2424, 2424 (2008) (mem.). On remand, the district court permitted several claims against the corporations to go forward, noting in part the court of appeals' admonition that "footnote 21 [in Sosa] merely provides guidance concerning the need for deference with regard to foreign policy matters" and "does not mandate summary dismissal of this case."
205. Ntsebeza v. Daimler AG (In re S. African Apartheid Litig.), 617 F. Supp. 2d 228, 281 (S.D.N.Y. 2009).
206. Sosa, 542 U.S. at 733 n.21.
207. For a sample of the vast literature on the debate over rules and standards, see Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557, 562-63 (1992) (contending that rules impose more costs ex ante, while standards require more effort ex post);
208. Sullivan, supra note 43, at 95-96 (asserting that the choice between rules and standards "resembles ⋯ that between legal codes and the common law").
209. See SCHAUER, supra note 135, at 137-38 (noting that rules make it easier for people to plan their activities).
210. See Sullivan, supra note 43, at 62-63, 66 (observing that "[s]tandards produce uncertainty" and can thus "chill[] socially productive behavior," but can also "allow decisionmakers to treat like cases that are substantively alike").
211. See SCHAUER, supra note 135, at 159 (urging mat rules "operate as tools for the allocation of power").
212. See Frederick Schauer, Rules and the Rule of Law, 14 HARV. J.L. & PUB. POL'Y 645, 686-88 (1991).
213. SEE VERMEULE, supra note 114, at 68 ("Rules and standards allocate decisionmaking authority in different ways ⋯ between different levels of a hierarchical institution ⋯.").
214. See id. at 69 (noting that "[b]oth rules and standards can be broad or narrow").
215. See Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314-15, 320 (2005).
216. See, e.g., McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844, 850, 881 (2005) (invalidating a Ten Commandments display at a county courthouse);
217. Van Orden v. Perry, 545 U.S. 677, 691-92 (2005) (upholding a Ten Commandments display on state capitol grounds);
218. County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 614, 621 (1989) (invalidating a crèche display at a county courthouse but upholding the display of a menorah near a Christmas tree);
219. Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (upholding a crèche display). Notably, in this context, there are more maximal alternatives. Compare Van Orden, 545 U.S. at 708 (Stevens, J., dissenting) (urging that, "at the very least, the Establishment Clause has created a strong presumption against the display of religious symbols on public property"), with McCreary County, 545 U.S. at 889, 893-94 & n.4 (Scalia, J., dissenting) (suggesting that religious displays are generally constitutional, as long as they do not favor a specific religious sect).
220. Cf. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1186-87 (1989) (recognizing that legal standards cannot "be entirely avoided" but "urg[ing] ⋯ that [they] be avoided where possible").
221. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (stating that, in an employment-discrimination action under Tide VII of the Civil Rights Act, the plaintiff must first show a "prima facie case of discrimination. Second, if the plaintiff succeeds ⋯. the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the [adverse action].' Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove ⋯ that the legitimate reasons offered ⋯ were a pretext for discrimination" (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973))).
222. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416-17 (1978).
223. Sosa v. Alvarez-Machain, 542 U.S. 692, 732, 733 n.21 (2004).
224. See Baze v. Rees, 128 S. Ct. 1520, 1532, 1537 (2008).
225. See, eg., Akhil Reed Amar, Some Opinions on the Opinion Clause, 82 VA. L. REV. 647, 668-69 & n.92 (1996) (asserting that the Constitution creates a hierarchical judiciary);
226. Amy Coney Barrett, The Supervisory Power of the Supreme Court, 106 COLUM. L. REV. 324, 362 (2006) (concluding that the hierarchical view is "more plausible");
227. Steven G. Calabresi & Gary Lawson, The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia, 107 COLUM. L. REV. 1002, 1007 (2007) (arguing that "the weight of textual, intratextual, and structural arguments points toward a hierarchical federal judiciary");
228. Caminker, supra note 36, at 829 n.49, 832-34 ("[T]he proposition that Article III commands all inferior courts to obey Supreme Court precedent appears quite powerful.");
229. Laurence Claus, The One Court that Congress Cannot Take Away: Singularity, Supremacy, and Article III, 96 GEO. L.J. 59, 70-71 (2007) (agreeing with the hierarchical view);
230. Charles Fried, Impudence, 1992 SUP. CT. REV. 155, 189-90 ("The Supreme Court has the hierarchical authority to set the law for lower courts.");
231. James E. Pfander, Jurisdiction-Stripping and the Supreme Court's Power to Supervise Inferior Tribunals, 78 TEX. L. REV. 1433, 1453 (2000) (urging that the Court is "the hierarchical leader of the judicial department").
232. See, e.g., Bhagwat, supra note 26, at 982-85 (contending mat the Constitution does not require a hierarchical federal judiciary);
233. William S. Dodge, Note, Congressional Control of Supreme Court Appellate Jurisdiction: Why the Original Jurisdiction Clause Suggests an "Essential Role", 100 YALE L.J. 1013, 1029-30 (1991) (same);
234. David E. Engdahl, What's in a Name? The Constitutionality of Multiple "Supreme" Courts, 66 IND. L.J. 457, 503-04 (1991) (same);
235. see also Michael Stokes Paulsen, Accusing Justice: Some Variations on the Themes of Robert M. Cover's Justice Accused, 7 J.L. & RELIGION 33, 82-88 (1989) (urging that lower courts can initially disregard "clearly erroneous" constitutional interpretations).
236. See, e.g., Frederic M. Bloom, State Courts Unbound, 93 CORNELL L. REV. 501, 503 (2008) (agreeing with the widely held view that "state courts must abide Supreme Court doctrine on questions of federal law");
237. Steven G. Calabresi & Gary Lawson, Equity and Hierarchy: Reflections on the Harris Execution, 102 YALE L.J. 255, 276 n.106 (1992) (urging that state courts have an "obligation to follow Supreme Court precedent in all cases");
238. Fried, supra note 165;
239. James E. Pfander, Federal Supremacy, State Court Inferiority, and the Constitutionality of Jurisdiction-Stripping Legislation, 101 NW. U. L. REV. 191, 199 (2007) (asserting that state courts "must remain subordinate to the Supreme Court" on federal issues);
240. see also Daniel A. Farber, The Supreme Court and the Rule of Law: Cooper v. Aaron Revisited, 1982 U. ILL. L. REV. 387, 390 (contending that the Court's constitutional decisions "are at least a form of federal common law" and "are binding federal law under the supremacy clause").
241. See, e.g., Caminker, supra note 36, at 837-38 (doubting that "state courts [must] obey Supreme Court federal law precedents");
242. see also Paulsen, supra note 166, at 84-88 (urging that state courts can initially disregard "clearly erroneous" constitutional interpretations).
243. For a discussion of the widely accepted practice of making inferences from constitutional structure, see CHARLES L. BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 7-32 (1969).
244. U.S. CONST, art. III, § 1.
245. U.S. CONST, art. I, § 8, cl. 9 (emphasis added).
246. Notably, as Dean Evan Caminker has explained, the designation of one court as "supreme" and others as "inferior" also suggests that these courts exercise the "judicial Power" in different ways. See Evan Caminker, Allocating the Judicial Power in a "Unified Judiciary", 78 TEX. L. REV. 1513, 1515 (2000) (urging that courts "enjoy somewhat different packages of judicial power ⋯ depending on their ⋯ placement" in the "hierarchical Article III system").
247. See 1 SAMUEL JOHNSON, A DICTIONARY OF THE ENGUSH LANGUAGE (1756) (defining " inferiour" to mean "1. Lower in place. 2. Lower in station or rank of life ⋯ 3. Lower in value or excellency ⋯ 4. Subordinate");
248. 2 JOHNSON, supra (defining "supreme" as "1. Highest in dignity; highest in authority ⋯ 2. Highest; most excellent").
249. See Engdahl, supra note 166, at 475 n.95 (asserting that it was "common" in eighteenuVcentury England and the states "to describe one tribunal as inferior" to another for various reasons, including "lesser subject matter or geographic competence").
250. See Barrett, supra note 165, at 346-47 (noting that the alternative definition based on "relative rank" "is important ⋯ only insofar as it permits one to [reject the hierarchical view] without depriving the terms of content").
251. U.S. CONST, art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land ⋯.").
252. Gonzales v. Raich, 545 U.S. 1, 29 (2005) (internal quotation marks omitted).
253. Pub. Utils. Comm'n of Cal. v. United States, 355 U.S. 534, 544 (1958) (" 'It is of the very essence of supremacy⋯ to modify every power vested in subordinate governments, as to exempt its own operations from their own influence.'" (quoting M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819))).
254. See U.S. CONST, art. II, § 2, cl. 2 ("[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States ⋯ but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."). The Court has distinguished "principal" and "inferior" officers, holding that the latter need not be appointed by the President (with the approval of the Senate) pursuant to the Appointments Clause.
255. See Buckley v. Valeo, 424 U.S. 1, 132 (1976).
256. In Morrison v. Olson, 487 U.S. 654 (1988), the Court upheld the Ethics in Government Act of 1978, which authorized the appointment of an independent counsel, based in part on its conclusion that the independent counsel was an "inferior" officer under the Appointments Clause.
257. See id. at 670-71, 696-97. The Court reasoned that, "[a]lthough [an independent counsel] may not be 'subordinate' to the Attorney General (and the President) insofar as she possesses a degree of independent discretion ⋯, the fact that she can be removed by the Attorney General indicates that she is to some degree 'inferior' in rank and authority."
258. Id. at 671. The Court thereby suggested that an officer can be "inferior" under the Appointments Clause even if she is not "subordinate" to the President or any other higher-ranking executive official. For further discussion of Morrison,
259. see infra note 182.
260. 520 U.S. 651 (1997).
261. Id. at 662;
262. see also id. at 666 (holding that the judges of the Coast Guard Court of Criminal Appeals were inferior officers and thus upholding a statute that provided for their appointment by the Secretary of Transportation). Although some scholars have suggested that Edmond superseded Morrison,
263. see Calabresi & Lawson, supra note 165, at 1018, Edmond did not expressly overrule Morrison. In any event, I need not resolve the precise meaning of the term "inferior" in the Appointments Clause. It seems reasonable, given the consistent construction of the Supremacy Clause and the Court's recent acknowledgement that "inferior" "generally" refers to a subordinate, that, when used together, the terms "supreme" and "inferior" connote a hierarchical relationship.
264. U.S. CONST, art VI, cl. 2.
265. Id.
266. U.S. CONST, art III, § 2, cl. 2 ("In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.").
267. U.S. CONST, art. III, § 2, cl. 1. Article III, of course, also authorizes federal courts to hear admiralty matters as well as various party-based cases and controversies. See id.
268. See Barrett supra note 165, at 354, 362 (observing that the Appellate Jurisdiction Clause offers "good evidence that Article III envisions some sort of hierarchy," given that it "directly vests the Supreme Court with the jurisdiction to review the judgments of inferior federal courts (and state courts)").
269. U.S. CONST, art. III, § 2, cl. 2.
270. Many federal courts scholars have concluded that the Exceptions Clause gives Congress plenary power to remove cases from the Court's appellate jurisdiction. See, e.g., Daniel J. Meltzer, The History and Structure of Article III, 138 U. PA. L. REV. 1569, 1569 (1990) (citing this as "the traditional view of article III"). Some scholars have, however, suggested limits. Henry Hart and Leonard Ratner have focused on preserving the Supreme Court's "essential role" or "essential functions."
271. See Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1365 (1953);
272. Leonard G. Ratner, Congressional Power over the Appellate Jurisdiction of the Supreme Court, 109 U. PA. L. REV. 157, 161 (1960) (urging that the Court must have the power to ensure the uniformity and supremacy of federal law).
273. Other commentators have asserted that the Exceptions Clause only allows Congress to move cases between the Court's original and appellate jurisdiction (a position that, they acknowledge, is at odds with Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)).
274. See, e.g., Calabresi & Lawson, supra note 165, at 1036-43;
275. Claus, supra note 165, at 77-80, 107.
276. See supra note 9 and accompanying text;
277. see also Caminker, supra note 36, at 834 (noting that the Court's constitutional relationship with lower courts is conceptually distinct from Congress's power to regulate jurisdiction).
278. Lawrence Gene Sager, The Supreme Court, 1980 Term - Foreword: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 48-49 (1981) (summarizing the debates over the provisions);
279. see Ratner, supra note 189, at 161-65 (same);
280. see also LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 75 (2004) (noting that the Convention delegates "include[d] the Supremacy Clause as a way to ensure judicial review of state laws").
281. See THE FEDERALIST NO. 22 (Alexander Hamilton), supra note 36, at 150 ("To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent [state] judicatories," it was "necessary to establish one court paramount to the rest ⋯ and authorized to settle and declare in the last resort a uniform rule of civil justice");
282. THE FEDERALIST NO. 39 (James Madison), supra note 36, at 245-46 (contending that the "tribunal" created by the Constitution would determine "the boundary between" the national and state governments);
283. THE FEDERALIST NO. 82 (Alexander Hamilton), supra note 36, at 493-94 ("[T]he national and State systems are to be regarded as ONE WHOLE. The courts of the latter will ⋯ be natural auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal [the Supreme Court] which is destined to unite and assimilate the principles of national justice and the rules of national decisions.").
284. Ratner, supra note 189, at 165;
285. see also Caminker, supra note 36, at 833 n.65 ("Even ardent states-rights advocates at the Constitutional Convention conceded the propriety of allowing Supreme Court review of state court decisions interpreting federal law.").
286. See U.S. CONST, art III, § 1;
287. Sager, supra note 191, at 48.
288. See supra notes 173-74 and accompanying text.
289. See, e.g., THE FEDERALIST NO. 82 (Alexander Hamilton), supra note 36, at 492 (reading the Article III Vesting Clause as meaning that "the organs of the national judiciary should be one Supreme Court, and as many subordinate courts as Congress should think proper to appoint");
290. id. at 494 (discussing appeals "to the Supreme Court ⋯ from the subordinate federal courts" and the state courts);
291. John Jay, Draft of Letter from Justices of the Supreme Court to George Washington (Sept. 15, 1790),
292. reprinted in 4 THE FOUNDERS' CONSTITUTION 161, 162 (Philip B. Kurland & Ralph Lerner eds., 1987) (describing the lower federal courts as "inferior and subordinate");
293. see also Letter from the Federal Farmer (XV) (Jan. 18, 1788;,
294. reprinted in 2 THE COMPLETE ANTI- FEDERALIST 315, 319-20 (Herbert J. Storing ed., 1981) (indicating, in his discussion of "all civil causes carried up the supreme court by appeals," an assumption that Article III places the Supreme Court atop a hierarchical federal judiciary).
295. * (emphasis added).
296. Notably, Professor Engdahl focused on the Supreme Court's relationship with the lower federal courts, but his historical arguments about the meaning of "supreme" may apply to the Court's constitutional role more generally.
297. Engdahl, supra note 166, at 475 n.95.
298. Id. at 466 ("Americans' best source of information about English law and practice was Blackstone's Commentaries. It is significant, therefore, mat Blackstone called courts 'inferior' and 'supreme' without reference to hierarchy." (footnote omitted)). Of course, it is not clear how much we can rely on the English judicial system in determining the meaning of Article III. See John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 8 (2001) ("Our constitutional structure certainly drew upon prior English practice in some respects, but it also departed from that practice in important respects."). According to Wilfred Ritz, the Framers sought to create a different judicial structure. See WILFRED J. Rrrz, REWRITING THE HISTORY OF THE JUDICIARY ACT OF 1789: EXPOSING MYTHS, CHALLENGING PREMISES, AND USING NEW EVIDENCE 41 (Wythe Holt & L.H. LaRue eds., 1990) ("The English judicial system, with its plethora of courts, obscure jurisdictions, and unclear hierarchical arrangements, was patently unsatisfactory, and was a model rather to be avoided than emulated.").
299. See Engdahl, supra note 166, at 468-72.
300. Professor Ritz has questioned the extent to which the Founders sought to mimic the colonial and early state judiciaries. See RITZ, supra note 200, at 35 ("[C]ontrary to what may be generally thought, the national judiciary was not modeled on the then-existing judicial systems of the states ⋯.").
301. See Engdahl, supra note 166, at 469-72 (noting that Virginia had four "supreme" courts in 1787).
302. 14 U.S. (1 Wheat.) 304 (1816).
303. see id. at 323-24.
304. See id. at 345-46, 351-52, 362.
305. 19 U.S. (6 Wheat.) 264 (1821).
306. Id. at 414-15.
307. plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 227 (1995).
308. Id.
309. 511 U.S. 298 (1994).
310. Id. at 312;
311. see id. ("[The lower court decisions] were not wrong according to some abstract standard of interpretive validity, but by the rules that necessarily govern our hierarchical federal court system.").
312. 454 U.S. 370 (1982).
313. Id. at 375;
314. see id. at 374-75 (admonishing the court of appeals for "having ignored, consciously or unconsciously, the hierarchy of the federal court system created by the Constitution and Congress").
315. 548 U.S. 331 (2006).
316. See id. at 353-55.
317. Id. at 353-54 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)) (emphasis added).
318. See Calabresi & Lawson, supra note 165, at 1023, 1030 (asserting that "any exercise of authority by" inferior federal courts, and any construction of federal law by state courts, must be subject to Supreme Court review);
319. Caminker, supra note 36, at 835-37 (contending that the Court must have "jurisdicdon sufficiently broad to provide general leadership in defining federal law");
320. Claus, supra note 165, at 64 (urging that "Congress can never ⋯ remove from the Supreme Court the ability to have ultimate judgment of Article III matters");
321. Pfander, supra note 165, at 1500-01 (asserting that it would raise "serious constitutional questions" if Congress sought to eliminate both the Court's appellate jurisdiction and its authority to supervise lower federal courts by issuing discretionary writs, such as mandamus);
322. Pfander, supra note 167, at 236 (making a similar claim with respect to state courts).
323. But see Edward A. Hartnett, Not the King's Bench, 20 CONST. COMMENT. 283, 314-15 (2003) (arguing that, "even if th[e] constitutional requirement of inferiority refers to" a hierarchical relationship, Congress would still have considerable authority to regulate the Court's jurisdiction).
324. See Calabresi & Lawson, supra note 167, at 276 n.106 (contending that lower federal courts and state courts have an "obligation to follow Supreme Court precedent");
325. Caminker, supra note 36, at 834 (arguing that "Article III commands all inferior federal courts to obey Supreme Court precedent");
326. Claus, supra note 165, at 71 (agreeing that the Constitution "subordinates all other courts' conclusions on Article III issues to those of the one [Supreme] Court");
327. James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 HARV. L. REV. 643, 649 (2004) (asserting that lower federal courts "must respect the decisions of their judicial superiors as controlling authority");
328. Pfander, supra note 167, at 202 (arguing that state courts must "give effect to federal law as pronounced by the Supreme Court");
329. Judge Stephen Reinhardt, The Supreme Court, the Death Penalty, and the Harris Case, 102 YALE L.J. 205, 206 (1992) (asserting that lower federal courts have a "constitutional obligation" "to apply whatever decisions the [Supreme] Court issues").
330. See U.S. CONST, art. II, § 2, cl. 2;
331. Buckley v. Valeo, 424 U.S. 1, 132 (1976).
332. U.S. CONST, art II, § 2, cl. 1.
333. The President has almost unlimited authority to remove high-level officials in executive agencies. See Myers v. United States, 272 U.S. 52, 176-77 (1926) (invalidating a statute that failed to give the President "the unrestricted power of removal" of certain executive officers). The President also has some authority to remove officials in independent agencies.
334. See Morrison v. Olson, 487 U.S. 654, 691-93, 696-97 (1988) (upholding the independent counsel statute, in part because it permitted the Executive Branch to remove an independent counsel "for cause");
335. see also Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 110 (1994) (arguing that "for cause" removal provisions may give the President "a large degree of removal ⋯ power").
336. Some scholars contend that the President should have unlimited authority to remove subordinate executive officials. See Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1166 (1992) (noting the argument of some unitary executive theorists that "the President has total power to remove [subordinate] officers who make [executive] policy decisions with which he disagrees").
337. see U.S. CONST, art. I, § 2, cl. 1;
338. U.S. CONST, amend. XVII.
339. U.S. CONST, art. I, § 2, cl. 5.
340. U.S. CONST, art. I, § 3, cl. 5;
341. see id. cl. 4 ("The Vice President ⋯ shall be President of the Senate, but shall have no Vote, unless they be equally divided.").
342. U.S. CONST, art I, § 5, cl. 2.
343. See Lydia Brashear Tiede, Judicial Independence: Often Cited, Rarely Understood, 15 J. CONTEMP. LEGAL ISSUES 129, 152 (2006) ("In many countries, such as Chile, Supreme Court justices rank all lower court justices based on their decisions and performance as judges. This ranking in turn affects lower court judges' pay and promotion possibilities." (footnote omitted));
344. James M. West & Dae-Kyu Yoon, The Constitutional Court of the Republic of Korea: Transforming the Jurisprudence of the Vortex?, 40 AM. J. COMP. L. 73, 81 (1992) (noting that the Korean Supreme Court "control[s] ⋯ promotions and transfers of judges at the lower levels");
345. Bruce M. Wilson, Claiming Individual Rights Through a Constitutional Court: The Example of Gays in Costa Rica, 5 INT'L J. CONST. L. 242, 248 (2007) (observing that in Costa Rica, Supreme Court magistrates "appoint all lower court judges").
346. See J. MARK RAMSEYER & ERIC B. RASMUSEN, MEASURING JUDICIAL INDEPENDENCE: THE POLITICAL ECONOMY OF JUDGING IN JAPAN 10-12 (2003).
347. The Constitution does not expressly state that inferior federal court judges are "principal" officers who must be appointed in this manner. But that has been our practice to date. In any event, the important point (for my purposes) is that the Constitution clearly does not require that those judges be selected by the Supreme Court.
348. See U.S. CONST, art. III, § 1 ("The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.").
349. See U.S. CONST, art. I, § 2, cl. 5 ("The House of Representatives ⋯ shall have the sole Power of Impeachment.");
350. U.S. CONST, art. I, § 3, cl. 6 ("The Senate shall have the sole Power to try all Impeachments.").
351. For the most current information on the selection and removal procedures in the various states, see American Judicature Society: Judicial Selection in the states, hup://www.judicialselection.us (last visited Oct. 3, 2009).
352. The Court does not, of course, need to explain how the law should apply even in the particular case. If, on remand, the lower court erred again, the Court could (in theory) simply reverse again. The Court might, however, be inclined to simplify the process by explaining how the lower court erred in the particular case.
353. SUNSTEIN, supra note 14, at 10.
354. See Appointment of Justices, 2 U.S. 399 (1790).
355. It took a few years, however, for any appeals to reach the Court. See 6 THE DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES: 1789-1800, at 3 (Maeva Marcus ed., 1998) [hereinafter DOCUMENTARY HISTORY] (noting that "there was a lag before the Supreme Court's docket began to fill up," in part because federal cases had to first cycle through the lower federal courts, and in part because litigants in the early 1790s only twice sought review of state court decisions). The Court thus spent its first few terms dealing with internal business and did not hear cases until August 1791.
356. See id. at 1. The Court issued its first written decision in 1792.
357. See ROBERT L. STERN ET AL., SUPREME COURT PRACTICE 55 n.116 (8th ed. 2002) ("On August 11, 1792, the Supreme Court rendered its first written decision:
358. Georgia v. Brailsford, 2 U.S. (2 Dall.) 402 (1792).").
359. See RITZ, supra note 200, at 46-47;
360. 1 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 288 (1922) (noting that, "after the close of [the] 1804 Term ⋯ William Cranch, the Chief Justice of the Circuit Court of the District of Columbia, issued the first volume of his [Supreme Court] Reports"). Alexander Dallas, a prominent lawyer who published state court reports in Pennsylvania,
361. see RICHARD E. ELLIS, THE J EFFERSONIAN CRISIS: COURTS AND POLITICS IN THE YOUNG REPUBLIC 118, 158 (1971),
362. began to publish Supreme Court opinions in 1798, see 6 DOCUMENTARY HISTORY, supra note 234, at 648 n.2 (observing that Dallas's second volume was published in 1798);
363. J.M. SOSIN, THE ARISTOCRACY OF THE LONG ROBE: THE ORIGINS OF JUDICIAL REVIEW IN AMERICA 284-85 (1989) (noting that the second volume was the first to contain Supreme Court opinions). But his reports were apparently incomplete.
364. See 1 THE DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES: 1789-1800, at xlii, xliv (Maeva Marcus & James R. Perry eds., 1985) (stating that The Documentary History constitutes "the first accurate record of all cases heard by the Supreme Court between 1790 and 1800," including "cases ⋯ not reported by Alexander James Dallas").
365. See SOSIN, supra note 235, at 203-04, 284-85 (noting the limited availability of law reports in the early republic).
366. See DONALD G. MORGAN, JUSTICE WILLIAM JOHNSON: THE FIRST DISSENTER 45-46 (1954) ("[N]early one-fifth of the adjudications [before 1801] found all the justices expressing their individual convictions⋯.").
367. See SYLVIA SNOWISS, JUDICIAL REVIEW AND THE LAW OF THE CONSTITUTION 123 (1990) ("[U]nder Marshall's leadership ⋯ the Court abandoned the practice of seriatim opinion writing and united behind a single opinion.").
368. See 1 WARREN, supra note 235, at 455-56. Indeed, Daniel Webster commented in 1818 that "[t]he sale [of Supreme Court reports] is not very rapid. The number of law libraries which contain a complete set is comparatively small."
369. Id. at 456 n.1.
370. 5 I.S. (1 Cranch) 137 (1803).
371. See 1 WARREN, supra note 235, at 288 (observing that a summary of Marbury was "widely published and commented upon in the newspapers");
372. see also SOSIN, supra note 235, at 204 (noting that, at the Founding, "judicial precedents existed" mostly in "pamphlets and newspaper accounts and the recollections of lawyers and judges").
373. See 1 WARREN, supra note 235, at 455 ("Many years elapsed before the Supreme Court Reports obtained any wide sale or circulation among lawyers. Even as late as 1830, [Supreme Court Reporter] Richard Peters[] stated that 'few copies were found in many large districts of the country.'").
374. Moreover, in its first few decades, the Court did not play a direct role in the publication of its decisions. Instead, Supreme Court reports were "private ventures." SOSIN, supra note 235, at 204. The Court did not appoint its own official reporter until 1817. See id.
375. See Judiciary Act of 1789, ch. 20, §§ 22, 25, 1 Stat. 73, 84-87 (authorizing review over state court decisions that denied a federal right and over federal circuit court decisions in civil matters when the amount in controversy exceeded $2000);
376. Engdahl, supra note 166, at 497 (noting that "$2,000 was a great deal of money in those days");
377. Eugene Gressman, Requiem for the Supreme Court's Obligatory Jurisdiction, 65 A.B.A. J. 1325, 1327 (1979) (observing that appellate review was mandatory from 1789 to 1891).
378. See STERN ET AL., supra note 234, at 55.
379. See DAVID M. O'BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS 156 (8th ed. 2008) (providing a chart showing that the Court's docket from 1800 until 1850 generally included 250 cases or fewer).
380. See David M. O'Brien, Managing the Business of the Supreme Court, 45 PUB. ADMIN. REV. 667, 671 (1985) (stating that the Court's February and August terms lasted no more than two or three weeks). The Court later switched to a short annual term.
381. See id.
382. The Justices rode circuit from 1789 until 1911. Steven G. Calabresi & David C. Presser, Reintroducing Circuit Riding: A Timely Proposal, 90 MINN. L. REV. 1386, 1390 (2006).
383. See LEE EPSTEIN ET AL., THE SUPREME COURT COMPENDIUM: DATA, DECISIONS & DEVELOPMENTS 63 tbl.2-2 (4th ed. 2007) (showing the rise in the Court's caseload from 1116 in 1910 to 1316 in 1924);
384. FELIX FRANKFURTER & JAMES M. LANDIS, THE BUSINESS OF THE SUPREME COURT: A STUDY IN THE FEDERAL JUDICIAL SYSTEM 60 (Transaction Publishers 2007) (1928) (noting that, in 1850, the Supreme Court's docket included 253 cases while, by 1890, its docket had swelled to 1816).
385. See FRANKFURTER & LANDIS, supra note 248, at 57-60, 206-08, 230 (observing that the increased workload during this period was partly due to "the extension of the field of federal activity").
386. See Act of Mar. 3, 1875, ch. 127, § 1, 18 Stat. 470, 470 (conferring general federal question jurisdiction in any case in which the amount in controversy exceeded $500);
387. Act of Dec. 23, 1914, ch. 2, 38 Stat. 790, 790 (extending the Court's appellate jurisdiction to include all federal question cases from state courts, not only those denying a federal right);
388. FRANKFURTER & LANDIS, supra note 248, at 65, 198 (noting that these statutes contributed to the rise in the Court's caseload). Congress provided some relief in 1891, when it created the federal courts of appeals and gave the Court discretionary certiorari review over certain appeals from those courts.
389. See Circuit Court of Appeals Act of 1891, ch. 517, § 6, 26 Stat. 826, 828 (authorizing discretionary review over cases involving diversity, revenue laws, patent laws, federal criminal laws, and admiralty). This legislation led to a temporary decline in the Court's workload.
390. See EPSTEIN ET AL., supra note 248, at 62 tbl.2-2 (showing a decline from 1816 in 1890 to 723 in 1900);
391. FRANKFURTER & LANDIS, supra note 248, at 101-02. But its workload rose again at the turn of the century.
392. See EPSTEIN ET AL., supra note 248, at 62-63 tbl.2-2 (showing an increase from 723 in 1900 to 1316 in 1924).
393. For an in-depth discussion of the Chief Justice's efforts, see Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges' Bill, 100 COLUM. L. REV. 1643, 1660-1704 (2000).
394. See Judiciary Act of 1925, Pub. L. No. 68-415, 43 Stat 936. The Act did, however, leave in place mandatory jurisdiction over (1) state court decisions invalidating federal statutes or treaties; (2) state court decisions upholding state law against federal constitutional challenge; (3) certain decisions by three-judge district courts; (4) certain criminal appeals by the United States; and (5) federal appellate court decisions invalidating state laws.
395. See § 1, 43 Stat. at 937-39.
396. See Procedure in Federal Courts: Hearing on S. 2060 and S. 2061 Before the Subcomm. of the S. Comm. on the Judiciary, 68th Cong. 47 (1924) [hereinafter Procedure Hearing] (statement of J. James C. McReynolds) ("[T]he number of possible Federal questions has become so large that we simply cannot pass upon all of them.");
397. H.R. REP. NO. 68-1075, at 2 (1925) ("The bill is designed to lessen the number of cases which under existing law reach the Supreme Court.");
398. STAFF OF S. COMM. ON THE JUDICIARY, 68th Cong., REPORT ON THE JUDICIAL CODE 2 (Comm. Print 1925) ("The primary object of the bill is to relieve the congestion resulting from the present overcrowded docket of the Supreme Court ⋯.").
399. William Howard Taft, Address to the New York County Bar Association 6 (Feb. 18, 1922), microformed on William H. Taft Papers, Reel 590 (Library of Congress) [hereinafter Taft Papers] (discussing the proposed legislation).
400. Id.
401. See H.R. REP. NO. 68-1075, at 2 (stating that the bill would eliminate "cases of trivial character" and give the Court time to "determin[e] more important cases");
402. STAFF OF S. COMM. ON THE JUDICIARY, 68th Cong., REPORT ON JUDICIAL CODE, at 2 ("[The bill] puts within the ability of the court the means of confining its jurisdiction to important cases ⋯.");
403. see also FRANKFURTER & LANDIS, supra note 248, at 260 ("At the heart of the [1925 legislation] was the conservation of the Supreme Court as the arbiter of legal issues of national significance.").
404. See H.R. REP. NO. 68-1075, at 2 ("The problem is whether the time and attention and energy of the [Supreme] court shall be devoted to matters of large public concern, or whether they shall be consumed by matters of less concern, without especial general interest, and only because the litigant wants to have the court of last resort pass upon his right.");
405. S. REP. NO. 68-362, at 3 (1924) ("The central thought [behind the legislation] is this, that ⋯ ordinary litigation should end [in the lower courts] and that the cases should not go to the Supreme Court ⋯ unless the questions involved are of grave public concern or unless serious uncertainty attends the decision of the ⋯ circuit court of appeals by reason of conflict in the rulings of these courts or the courts of the States.");
406. see also Second Annual Message of President Calvin Coolidge (Dec. 3, 1924), in 3 THE STATE OF THE UNION MESSAGES OF THE PRESIDENTS, 1790-1966, at 2655, 2662 (Fred L. Israel ed., 1966) (supporting the legislation because it would empower the Court to "dispos[e] of those [cases] which are not of public moment");
407. infra notes 258-65 and accompanying text.
408. Procedure Hearing, supra note 253, at 29-30 (statement of J. Willis Van Devanter). Justice Van Devanter was reportedly the principal draftsman of the 1925 Judiciary Act.
409. See FRANKFURTER & LANDIS, supra note 248, at 260.
410. See Procedure Hearing, supra note 253, at 45 (statement of J. McReynolds).
411. Id.
412. Id. at 47.
413. Letter from William Howard Taft to Senator Reed Smoot 2 (July 3, 1925), Taft Papers, supra note 254, at Reel 275.
414. Jurisdiction of Circuit Courts of Appeals and United States Supreme Court: Hearing on H.R. 10479 Before the H. Comm. on the Judiciary, 67th Cong. 2 (1922) [hereinafter Jurisdiction Hearing] (statement of C.J. Taft).
415. Id. at 3;
416. see also William Howard Taft, The Jurisdiction of the Supreme Court Under the Act of February 13, 1925, 35 YALE L.J. 1, 2 (1925) [hereinafter Taft, Jurisdiction of the Supreme Court] (stating that the Supreme Court should hear cases involving "principles, the application of which are of wide public or governmental interest, and which should be authoritatively declared by the final court").
417. Taft, supra note 254, at 6-7.
418. Notably, the Court's certiorari rules have, since 1925, reflected this increasing emphasis on law declaration over dispute resolution. See Taft, Jurisdiction of the Supreme Court, supra note 264, at 3 n.4 (quoting the Court's certiorari rules, which, beginning in 1925, provided that certiorari would be "granted only where there are special and important reasons," including when "a state court has decided a federal question of substance not theretofore determined by this court, or has decided it in a way probably not in accord with applicable decisions of this court," or in the event of a conflict among the lower courts);
419. SUP. CT. R. 10 (Considerations Governing Review on Certiorari). There have been only two notable changes in the Court's certiorari rules since 1925. First, following Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), the Court stopped reviewing "important question[s] of local law."
420. Cf. Taft, Jurisdiction of the Supreme Court, supra note 264, at 3 n.4 (noting that the Court previously considered such matters). Second, the Court has further underscored that it will resolve a conflict in the lower courts only if the matter involves an "important" federal question.
421. See STERN ET AL., supra note 234, at 225 (noting that the Court amended its rules in 1995 to make this requirement explicit).
422. Jurisdiction Hearing, supra note 263, at 3 (statement of C.J. Taft).
423. See EPSTEIN ET AL., supra note 248, at 65-67 tbl.2-2 (showing that the Supreme Court's caseload rose from 1321 in 1950, to 4761 in 1975, and to 8965 in 2000).
424. See O'Brien, supra note 246, at 667 ("[B]y and large, the docket reflects the course of legislation and broad socioeconomic change in the country.").
425. See id. at 667, 669 (suggesting that "[d]ecisions expanding the constitutional rights of indigents ⋯ contributed to an increase in filings" in the post-World War II period).
426. See RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 61 tbl.3.1, 64 tbl.3.2 (1985) (reporting that, from 1960 to 1983, filings in district court rose from 79,200 to 277,031 and those in appellate courts rose from 3765 to 29,580).
427. There do not appear to be statistics on precisely how many federal claims are heard in state court. See Pfander, supra note 167, at 233 n.184.
428. There were various suggestions for how the Court could best address its capacity constraints. Much of the debate focused on the possible creation of a national court of appeals to assist the Court, particularly in resolving lower court conflicts. See Report of the Study Group on the Caseload of the Supreme Court, 57 F.R.D. 573, 590-95 (1972) (recommending a National Court of Appeals to take on part of the Court's workload);
429. Commission on Revision of the Federal Court Appellate System, Structure and Internal Procedures: Recommendations for Change, 67 F.R.D. 195, 199 (1975) (recommending a National Court of Appeals to hear cases referred by the Supreme Court or transferred from a federal court of appeals). This proposal was, however, criticized by some Justices and scholars, and "ultimately the idea withered away."
430. Margaret Meriwether Cordray & Richard Cordray, The Supreme Court's Plenary Docket, 58 WASH. & LEE L. REV. 737, 741-42 (2001).
431. See Pub. L. No. 100-352, 102 Stat. 662 (1988).
432. See, e.g., H.R. REP. NO. 100-660, at 14 (1988),
433. reprinted in 1988 U.S.C.C.A.N. 766, 779 (stating that "[t]he Supreme Court - which of course sits at the apex of the Federal judicial system - can devote plenary consideration only to about 150 cases a year" and should thus concentrate its limited resources on "cases involving principles the application of which are of wide public importance or governmental interest");
434. S. REP. NO. 100-300, at 4 (1988) ("History has shown that imposing ⋯ mandatory functions on the Supreme Court tends to weaken the Court's capacity both to control its own docket and to confine its labors to those cases of national importance.").
435. See S. REP. NO. 100-300, at 2 (noting "'the unanimous view of the Supreme Court endorsing elimination of the Court's mandatory jurisdiction'" (quoting Letter from C.J. William Rehnquist to Sen. Heflin (Nov. 17, 1987)));
436. H.R. REP. NO. 100-660, at 27, 1988 U.S.C.C.A.N. at 781 (Letter from Supreme Court to Rep. Kastenmeier (June 17, 1982));
437. Letter from Supreme Court to Sen. DeConcini (June 22, 1978),
438. reprinted in Gressman, supra note 243, at 1328.
439. H.R. REP. NO. 100-660, at 27, 1988 U.S.C.C.A.N. at 781-82 (Letter from Supreme Court to Rep. Kastenmeier); see Letter from Supreme Court to Sen. DeConcini (June 22, 1978),
440. reprinted in Gressman, supra note 243, at 1328.
441. H.R. REP. NO. 100-660, at 27, 1988 U.S.C.C.A.N. at 781-82 (Letter from Supreme Court to Rep. Kastenmeier).
442. Id. at 28, 1988 U.S.C.C.A.N at 782. Indeed, the Court often appeared to use its certiorari standards in adjudicating mandatory appeals, when it dismissed state appeals for want of a substantial federal question or summarily affirmed lower federal court decisions.
443. See H.W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 104-06 (1991);
444. see also H.R. REP. NO. 98-986, at 9-10 (1984) (listing, as one reason for "eliminating" much of the Court's mandatory appellate jurisdiction, the fact that "the Supreme Court has necessarily come to treat cases that require review as the functional equivalent of ⋯ cases that are reviewed on a discretionary basis").
445. Letter from Supreme Court to Sen. DeConcini (June 22, 1978), reprinted in Gressman, supra note 243, at 1328.
446. H.R. REP. NO. 100-660, at 28, 1988 U.S.C.C.A.N. at 782 (Letter from Supreme Court to Rep. Kastenmeier); see Hicks v. Miranda, 422 U.S. 332, 344-45 (1975).
447. But such decisions had an uncertain precedential status, see Edelman v. Jordan, 415 U.S. 651, 671 (1974) (stating that summary affirmances "are not of the same precedendal value" as an opinion on the merits), and did not necessarily apply at all in different factual circumstances,
448. see Mandel v. Bradley, 432 U.S. 173, 177 (1977). By contrast, the denial of certiorari is clearly not a decision on the merits.
449. See Teague v. Lane, 489 U.S. 288, 296 (1989).
450. H.R. REP. NO. 100-660, at 28, 1988 U.S.C.C.A.N. at 782 (Letter from Supreme Court to Rep. Kastenmeier).
451. Arthur D. Hellman, Caseload, Conflicts, and Decisional Capacity: Does the Supreme Court Need Help?, 67 JUDICATURE 28, 30-31 (1983) (quoting Address of C.J. Hughes at the American Law Institute Meeting,
452. in 20 A.B.A. J. 341, 341 (1934));
453. see Peter L. Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1096 (1987) (stating that "the enormousness of the Court's potential docket prohibits it from serving [as] ⋯ a court of errors");
454. see also SAMUEL ESTREICHER & JOHN SEXTON, REDEFINING THE SUPREME COURT'S ROLE: A THEORY OF MANAGING THE FEDERAL JUDICIAL PROCESS 95 (1986) (arguing that the Court "should not intervene simply to undo error below" (emphasis added)).
455. See Robert Post, The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court, 85 MINN. L. REV. 1267, 1287 (2001) (observing that, in the 1920s, "a full Supreme Court opinion was a routine method of deciding a large proportion of the Court's [mandatory] appellate docket," and was "relatively short and succinct," but "[b]y the 1990s," a full opinion "had become the Court's way of addressing the very few cases on its docket of exceptional importance. Each opinion accordingly received fuller and more extensive attention, manifested both by its relative length and by the full complement of concurring and dissenting opinions that was likely to accompany it").
456. Id. at 1306.
457. Taft, supra note 254.
458. Jurisdiction Hearing, supra note 263, at 3 (statement of C.J. Taft).
459. Letter from William Howard Taft to Clyde B. Aitchison (Dec. 4, 1925), Taft Papers, supra note 254, at Reel 278 ("[The Court's] chief function [in writing opinions] is not to get rid of cases, it is to clarify the law and to be helpful in other cases. It is not a discharge of that function to be cryptical and leave the reader still guessing." (emphasis added)).
460. Letter from William Howard Taft to Charles P. Taft 3 (Nov. 1, 1925), Taft Papers, supra note 254, at Reel 277.
461. Post, supra note 284, at 1308 (emphasis added).
462. See Strauss, supra note 283, at 1094-95.
463. Id. at 1095.
464. See id. ("[T]he Court's opinions on the merits may be influenced by its management dilemmas. It may choose outcomes mat tend to make its control over the appellate courts more effective ⋯.").
465. 467 U.S. 837 (1984).
466. See id. at 842-44.
467. Strauss, supra note 283, at 1121.
468. Id.
469. 384 U.S. 436 (1966).
470. See Strauss, supra note 10, at 190 (internal quotation marks omitted).
471. Id. ("[C]onstitutional law consists, to a significant degree, in the elboration of doctrines that are universally accepted as legitimate, but that have the same 'prophylactic' character as the Miranda rule.").
472. See id. at 198-204;
473. see, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) ("Content-based regulations are presumptively invalid."). Notably, this broad rule against content-based restrictions was a creation of the post-1925 Court.
474. See Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189, 189 (1983).
475. See Strauss, supra note 10, at 205-07;
476. see also, e.g., Hodel v. Indiana, 452 U.S. 314, 331-32 (1981) (stating that "economic legislation ⋯ that does not employ suspect classifications or impinge on fundamental rights" is presumptively valid).
477. Strauss, supra note 283, at 1121.
478. Post, supra note 284, at 1308 (emphasis added);
479. see also id. ("Fashioning an opinion ⋯ to resolve a dispute between parties ⋯ is rooted in the conception of the Supreme Court as a tribunal of last resort that predominated during the first 150 years of [its] existence.").
480. See POSNER, supra note 271, at 64 tbl.3.2.
481. See FEDERAL COURT MANAGEMENT STATISTICS: U.S. COURT OF APPEALS - JUDICIAL CASELOAD PROFILE (2008), available at http://www.uscourts. gov/cgi-bin/cmsa2008.pl (reporting that, in 2006, 66,618 appeals were filed and 67,582 were terminated; in 2007, 58,410 appeals were filed and 62,846 were terminated; and, in 2008, 61,104 appeals were filed and 59,096 were terminated). For statistics on the federal district courts,
482. see FEDERAL COURT MANAGEMENT STATISTICS: U.S. DISTRICT COURT - JUDICIAL CASELOAD PROFILE (2008), available at http://www.uscourts.gov/cgi-bin/cmsd2008. pl (stating that, in 2006, 335,868 cases were filed and 350,807 were terminated; in 2007, 335,655 cases were filed and 317,277 were terminated; and, in 2008, 349,969 cases were filed and 317,056 were terminated).
483. See EPSTEIN ET AL., supra note 248, at 66 tbl.2-2 (showing a docket of 5,144 cases in 1980; 5,100 cases in 1983; 5,158 cases in 1985; and 5,746 cases in 1989).
484. See id. at 74 tbl.2-6 (showing that the Court granted review in 184 cases in 1980; 149 cases in 1983; 186 cases in 1985; and 122 cases in 1989).
485. See 2008 ANNUAL REPORT: JUDICIAL BUSINESS OF UNITED STATES COURTS 84 tbl.A-1, available at http://www.uscourts.gov/judbus2008/contents.cfm (reporting that, in 2007, the Court had 9,602 cases on its docket and issued 74 decisions on the merits, 72 with a full opinion, 2 per curiam; in 2006, the Court had 10,256 cases on its docket and issued 78 decisions on the merits, 74 with a full opinion, 4 per curiam; and, in 2005, the Court had 9,608 cases on its docket and issued 87 decisions on the merits, 82 with a full opinion, 5 per curiam).
486. See, e.g., Kenneth W. Starr, The Supreme Court and Its Shrinking Docket: The Ghost of William Howard Taft, 90 MINN. L. REV. 1363, 1383 (2006) (asserting that "the [Supreme] Court should decide more cases").
487. See VERMEULE, supra note 114, at 268 ("The Court's peak capacity runs to about 200 cases per year ⋯.");
488. Strauss, supra note 283, at 1100 (doubting that the Court could decide more than 150 cases per year).
489. Letter from William Howard Taft to Senator Reed Smoot 2 (July 3, 1925), Taft Papers, supra note 254, at Reel 275.
490. Jurisdiction Hearing, supra note 263, at 3 (statement of C.J. Taft).
491. Letter from William Howard Taft to Clyde B. Aitchison (Dec. 4, 1925), Taft Papers, supra note 254, at Reel 278 (emphasis added).
492. Rosen, supra note 40.
493. The Chief Justice has explained that his goal is to promote unanimity on the Supreme Court Id. (reporting that Chief Justice Roberts seeks "to promote unanimity and collegiality on the Court, encouraging his colleagues to decide cases as narrowly as possible so that liberal and conservative justices [can] converge on common results").
494. See More Consensus on Court, supra note 26 (quoting Chief Justice Roberts).
495. See Baze v. Rees, 128 S. Ct. 1520, 1537-38 (2008).
496. Sherman, supra note 69 (quoting Dean Chemerinsky).
497. Sosa v. Alvarez-Machain, 542 U.S. 692, 738 (2004).
498. Strauss, supra note 283, at 1101.
499. Article III's case-or-controversy requirement allows a federal court to decide legal questions only in the context of a specific case and thus (arguably) demands that the court tailor each legal pronouncement to the circumstances before it. As noted, I have bracketed for now the possible tension between the case-or-controversy requirement and a Supreme Court presumption in favor of vertical maximalism. See supra note 10 and accompanying text.
500. Letter from Supreme Court to Sen. DeConcini (June 22, 1978), reprinted in Gressman, supra note 243, at 1328.
501. H.R. REP. NO. 100-660, at 28 (1988),
502. reprinted in 1988 U.S.C.C.A.N. 766, 782 (Letter from Supreme Court to Rep. Kastenmeier (June 17, 1982)).
503. Letter from William Howard Taft to Clyde B. Aitchison (Dec. 4, 1925), (Taft Papers, supra note 254, at Reel 278 (emphasis added).
504. Strauss, supra note 283, at 1095.
505. Fletcher, supra note 97, at 671.