Federalism as Docket Control

Although federal circuit and district court judges are placed within a federal hierarchy, and receive legal and judicial training that emphasizes the importance of the judicial framework and its structure, such judges are also subjected to other pressures such as the types of litigants within the courtrooms as well as their local political environment. Furthermore, such judges are apt to form their own views about politics and legal policy and are often appointed by presidents who approve of their ideological leanings. Thus, federal courts are caught between competing goals such as their willingness to maximize their preferred legal policy, and their place within the judicial hierarchy. This dissertation applies hierarchy and impact theory to assess the importance of the judicial framework and its socialization, by analyzing both the judicial opinions and votes of federal circuit and district court judges in obscenity cases during a four-decade period (1957-1998). The research presented here finds the influence of higher court precedent to correspond in part with the conception of a judicial hierarchy. An analysis of citations of Supreme Court precedent (Roth v. United States (1957) and Miller v. California (1973)) in lower court majority opinions suggests low levels of compliance: lower courts at the circuit and district court level do not signal to the Supreme Court their acceptance of High Court doctrine; thus, except for 'factual' cases, most circuit and district court decisions do not comply formally with higher court precedent. An analysis of judicial votes, however, suggests that a Supreme Court doctrinal shift (to Miller v. California) influences lower court decisions only at the circuit court level. Further investigation suggests that Supreme Court precedent has a greater influence in circuit courts than in district courts: not only is the magnitude greater for circuit (versus district) court decisions, such results occur when controlling for such factors as the appointing president, regional variations, various constitutional claims and types of litigants. Thus, it appears that the influence of Supreme Court doctrine is much stronger in the circuit courts (only one step removed from the Supreme Court) than in district courts yet the hierarchy is influential nonetheless.

Policy Points Since its founding, the Supreme Court has played a major role in defining the parameters of governments' public health powers and the scope of individual health-related rights. Although conservative courts have been less favorable to public health objectives, federal courts have, for the most part, advanced public health interests through consensus and adherence to the rule of law. In establishing the current six-three conservative supermajority, the Trump administration and the Senate shifted the Supreme Court dramatically. A majority of Justices, led by Chief Justice Roberts, did shift the Court in a decidedly conservative direction. It did so incrementally, guided by the Chief's intuition that the Institution itself should be preserved, mindful of maintaining public trust and appearing outside the political fray. That has all changed because Roberts' voice no longer holds sway. Five members of the Court have displayed a willingness to overturn even long-held precedent and dismantle public health policy in favor of the Justices' core ideological tenants-notably the extensive reach of the First and Second Amendments and a parsimonious view of executive and administrative action. Public health is vulnerable to judicial rulings in this new conservative era. This includes classic public health powers in infectious disease control as well as reproductive rights; lesbian, gay, bisexual, trans, queer or questioning, and others (LGBTQ+) rights; firearm safety; immigration; and climate change. Congress has the power to curb the most extreme actions of the Court while still adhering to the vital ideal of a nonpolitical branch. That does not require Congress itself to overreach (such as by "packing" the Supreme Court, as Franklin Delaeno Roosevelt once proposed). Congress could, however, 1) disempower lower federal judges from issuing injunctions that apply nationwide, 2) limit the Supreme Court's so-called shadow docket, 3) alter the way that presidents appoint federal judges, and 4) set reasonable term limits for federal judges and Supreme Court Justices.

Where Was Everyone? The Fatal Siloing of Abortion Advocacy Meaghan Winter (bio) Click for larger view View full resolution On December 13, 2021, activists with ShutDownDC held a candlelight vigil to draw attention to the Supreme Court's attack on abortion rights and mark the fiftieth anniversary of Roe v. Wade. (Alex Wong/Getty Images) [End Page 100] I briefly dated a man who told me that he thought abortion should be legal but “didn’t think it should be used as birth control” and later, with no sense of irony, argued with me and then became so angry that I was frightened when I insisted that we use a condom. I bring this up for a couple of reasons. First, public writing about abortion is usually either personal and confessional or, more often, legalistic, political, and abstracted from what abortion is really about—people’s bodies, the most private aspects of their lives, and the bargains, dilemmas, and battles, small and large, that cisgender women face as a matter of course. Second, abortion is usually framed as a women’s issue, and it does, of course, foremost affect women. But straight men of my generation have also built their lives—lives often defined by enormous freedoms—on access to contraception and abortion. Those of us who came of age after Roe v. Wade have rarely had to reflect on how legal abortion has shaped our most basic assumptions about our lives. If you’ve grown up in a country with legal abortion, and particularly if you’re a straight man, I ask that you pause and imagine what your private life would have been like if had you faced the real possibility of creating a pregnancy that couldn’t be terminated every time you had sex. Consider everything that makes up your life—degrees or jobs, yes, but also your friendships, marriages, turns in the road, children born because they were wanted, whatever you value—and appreciate how much of it was made possible by living in a society where abortion was legal and often presumed accessible. The right to have an abortion is in peril. This spring, the Supreme Court will hand down its decision in Dobbs v. Jackson, the most pivotal abortion case in fifty years. Under consideration is Mississippi’s ban on abortions after fifteen weeks, which the state legislature passed in 2018. According to the central holding of Roe, all pre-viability bans are unconstitutional, which includes a fifteen-week ban. The only remaining abortion clinic in Mississippi, Jackson Women’s Health, sued the state, asking courts to block the law. A district court and then the U.S. Court of Appeals for the Fifth Circuit [End Page 101] (which is infamously conservative) sided with the clinic. The state appealed, and the Supreme Court agreed to hear arguments. Dobbs should be an open-and-shut case, and before 2020 it would have been. The only way for the Court to allow Mississippi its fifteen-week ban is to defy decades of precedent and gut the core of Roe. The mere fact that the Supreme Court decided to hear Dobbs is an ominous sign. Usually, the Court will take up a case when the lower federal courts disagree over whether a law is constitutional. In this case, the federal courts agree; they have consistently squashed total pre-viability bans because fifty years of precedent clearly prohibits them. For decades, the Court hasn’t bothered to take up abortion cases that obviously defy Roe. What has changed is the political makeup of the Court, particularly following Trump’s appointment of Amy Coney Barrett. Her nomination, like those of Neil Gorsuch and Brett Kavanaugh before her, was not an accident of history. The Trump administration was able to remake the judiciary for at least a generation, installing an unprecedented number of federal judges and three Supreme Court justices, because leaders of the conservative movement have spent forty years and millions of dollars to incubate a legal establishment that would shrink the power of the federal government, give more leeway to states and corporations, and prioritize conservative social views and textual interpretations of the Constitution. One powerful group, the...

In The Rehnquist Court and the Constitution, Tinsley Yarbrough provides a comprehensive look at today's Supreme Court Justices and their record-a study all the more valuable for the Court's mixed decisions and hard-to-categorize course. An accomplished biographer, Yarbrough offers incisive portraits of the nine who now sit on the high bench, and tellingly reviews their nomination hearings. He also explores the workings of the Court, ranging from the selection and role of the clerks to the work load (including the end-of-term June crunch) and assignment of opinions. But the heart of the book is a systematic exploration of the Court's record in such fields as government power, economic regulation, and criminal justice. In decision after decision, the author discusses the various justices' opinions, arguments, and legal theories; he also offers his own analysis (including a sharp critique of the decision to allow the Paula Jones lawsuit to move forward). Like many writers on the Rehnquist Court, Yarbrough finds a general continuity with the past, shaded by a conservative outlook (especially in matters of criminal justice and affirmative action), but he identifies a significant departure in its rulings on economic regulation. Since 1937, he writes, the Supreme Court had generally adopted an expansive view of federal power over economic matters; the Rehnquist Court has reversed that trend. The Rehnquist Court has not launched an all-out assault on the Warren Court's precedents, as many conservatives hoped, but as Yarbrough shows it has embarked on important new departures. Thoughtful, wide-ranging, intelligently written, this book will stand as the finest study of the Rehnquist Court for years to come.

The United States has a distinctive dualist government system whereby the elected government must share its responsibilities with parties that have no mandate from the people. It is seen as a good feature of the American system that the party in power cannot always prevent others from securing policies it may disapprove. The Supreme Court is said to be a co-equal branch of government, one institutional mechanism by means of which counter-majoritarian, dualist principles are actualized. This kind of leadership can be seen to be desirable between 1955-1986 when the Supreme Court, under Chief Justices Earl Warren and Warren Burger used judicial authority to expand the protection offered to individuals and groups by the Bill of Rights. For example, it redefined the separation of Church and State doctrine to eliminate prayer from public schools, recognized privacy as a right to free sexuality from the shackles of religious morality and to forbid state governments from preventing pregnant women from securing abortions. This book reflects the growing disenchantment within the US with this dualist paradigm. Because of the influence Republican Presidents have enjoyed over the appointment of federal judges, the resurgence of monist ideas in the US is now influential within the federal judiciary itself. Many US judges reject the dualist approach, and advocate a return to a vision of how their constitutional system should function that is focused on the need to allow those who win elections to govern.

Judging Federal White-Collar Fraud Sentencing: An Empirical Study Revealing the Need for Further Reform

The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law

Shadow Judges: Uncovering Judicial Power Delegation in the District Courts

Restraining Multiple Bites at the Class Certification Apple: May a Federal Court Enjoin a State Court from Relitigating a Class Certification Denial?

Inconsistency and Angst in District Court Resolution of Social Security Disability Appeals

Getting off the Dole: Why the Court Should Abandon its Spending Doctrine, and How a Too-clever Congress Could Provoke it to do So

This is the ultimate resource for authoritative information on the American Presidency, Congress, and Supreme Court

A Strategic Model of Judicial Behavior in the Lower Federal Courts

DUALIST POPULAR CONSTITUTIONALISM A Reply to Michelman

William Howard Taft and the Importance of Unanimity* SANDRA DAY O’CONNOR This Term, the Historical Society has put on a wonderful series about the man who is widely—and rightly—regarded as this Court’s greatest Chief Justice. Through his recognition ofthe right ofjudicial review, John Marshall secured for this Court a role in shaping the nation’s most important principles: racial equality, individual liberty, the meaning of democracy, and so many others. Learning more about John Marshall this Term has caused me to think about another great Chief Justice, who perhaps deserves al­ most as much credit as Marshall forthe Court’s modern-day role, but does not often receive the recognition: William Howard Taft. Taft, of course, was remarkable even before he became ChiefJustice—but even the presidency did not hold as much charm for Taft as did his eventual position on the Court. Mrs. Taft noted in her memoirs that “[NJever did he cease to regard a Supreme Court appointment as vastly more desirable than the Presidency.”1 Mrs. Taft, however, disagreed. She loved being First Lady, and was a good one, at that. She was responsible for bringing the cherry blossoms to Washington, a feat for which I am particularly grateful. She also made a bit of history on March 4,1909 by becoming the first First Lady to accompany her husband from the Capitol to the White House on Inauguration Day.2 She was a difficult woman to refuse. Taft, on the other hand, was an unpop­ ular President. His bid for re-election was so unsuccessful that he himself described his defeat as “not only a landslide but a tidal wave and holocaust all rolled into one general cataclysm.”3 Despite his failures as President, however, as chief executive of the Court Taft could only be considered a success. When he took over the job, he found a federal system overwhelmed with cases, causing the Supreme Court’s docket to be as much as five years be­ hind and placing the other federal courts in similarly dire straits.4 Taft, with his experi­ ence as an executive and his connections on Capitol Hill, succeeded in securing the ap­ pointment of twenty-four additional federal judges.5 He also founded the predecessor to the Judicial Conference of the United States, 158 JOURNAL OF SUPREME COURT HISTORY Helen Taft (pictured with her husband and son) be­ came the first First Lady to accompany her hus­ band from the Capitol to the White House on In­ auguration Day. She pre­ ferred being the wife of a President to being that of a Chief Justice. thejob ofwhich it became to keep statistics on the work of federal courts and to suggest re­ forms to keep the federal system functioning smoothly.6 Taft lessened the load on the Supreme Court by successfully lobbying Congress to pass a statute that would give the Court greater control over its own docket by substituting discretionary certiorari review for much of what had previously been mandatory appel­ late jurisdiction.7 But Taft’s concern for the Court went beyond simple efficiency: he had a vision of the Court much grander than that ofa court of error securing justice for individ­ ual litigants. As Taft saw it, individual litigants received all the justice they required through the federal district courts and courts of ap­ peals. The Supreme Court’s role was only “to maintain uniformity ofdecision forthe various courts ofappeal, [and] topass on constitutional and other important questions.”8 Control over its own docket allowed the Court to pass over ordinary lawsuits and spend more time on these sorts of questions. In keeping with his vision of the Court as a player in issues of national importance, Taft also lobbied Congress to appropriate funds to build the present Supreme Court Building, a building whose grandeur matched Taft’s sense of the significance of the business conducted therein.9 Chief Justices Taft and Marshall also placed great value on keeping the Courts over which they presided unanimous. John Marshall began his Chief Justiceship by putting to an end the English practice of seriatim opinions, THE IMPORTANCE OF UNANIMITY 159 Not only was Chief Jus...