How to Rig the Federal Courts

David Law Washington University in St. Louis

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Introduction

Few scholars would dispute that the way in which political institutions are designed affects the way that policymakers behave or the kinds of policies that are produced.  Nor can it seriously be argued that courts are somehow an exception to the basic rule that institutional design matters.  It is thus surprising how rarely one encounters discussion of the impact of institutional design on judicial behavior, even though the internal design of the judiciary has profound and systematic effects on judicial policymaking.  

If we are indeed interested in understanding the impact of the institutional arrangements that we currently have, there is probably no better way to do so than to compare them against alternative arrangements, either real or hypothetical.  And we are likely to learn the most from such comparisons if they are done with a concrete and relevant question in mind.  Consider, for example, this decidedly Machiavellian question: how might one rig the federal courts?  “Court-rigging” refers here to entrenching a relatively durable ideological bias in the courts.  Although it is impossible to completely insulate the courts from changes in the political environment, a carefully crafted institutional design strategy can extend the longevity of a political regime’s influence over judicial policymaking and hinder subsequent efforts by the opposition to recapture the judiciary.

How might such a strategy look?  What aspects of the existing institutional framework might be altered, and in what ways, to rig the courts?  In principle, the entrenchment of an ideological bias in any policymaking institution­­––whether it be an administrative agency or an independent judiciary­­––can be reduced to a three-step process.  The first step, which we might call power-imbalancing, is to place people who possess the desired ideological bias in positions of power within the institution, at the expense of those on the wrong side of the ideological fence.  The second step, that of stabilization, is to render this internal imbalance of power self-perpetuating.  The third step, that of insulation, is to limit the opportunities for future political actors to undo or reverse what was done.  All three steps can be executed via an overarching strategy of delegating power over crucial decisions—including, but not limited to, recruitment and promotion—to ideologically reliable, self-replicating agents who are insulated from the effects of political regime change.

To put this strategy in more concrete terms, imagine that it must be put to the test in the following hypothetical scenario.  Suppose, strictly for the sake of argument, that in the space of a single election, the Democratic Party wrests from the Republican Party control of not only the White House, but also both houses of Congress. Indeed, its margin of victory is so great that, as happened in 2009, it secures the rare but fleeting prize of a filibuster-proof majority.  At the same time, however, this temporary Democratic supermajority confronts the legacy of years of Republican rule in the form of a conservative-dominated Supreme Court and, more generally, a federal bench on which Republican appointees outnumber Democratic appointees.  As a matter of institutional design, the challenge for this new regime will be to find a way of shifting control over policy and personnel decisions away from the Supreme Court toward a reliably liberal set of judges, or some other set of reliably liberal actors.  This shift must be entrenched, in the sense of being stable and robust against changes in the political environment.  And finally, all of this must be done in a way that does not run afoul of Article III’s guarantees of judicial independence or any other constitutional provision. 

This Article discusses several concrete techniques that this hypothetical supermajority might use to accomplish these goals.  The first would be to transfer appellate control over judicial policymaking from the Supreme Court to a newly created court controlled by a liberal subset of the bench.  The second would be to vest the power to appoint this court’s members in the court itself.  The third would be to consolidate liberal control over judicial policymaking and deprive oppositional conservative elements within the judiciary of necessary resources by placing the selection and supervision of law clerks in the hands of elite law faculties. 

 I.  How to Gain Control Over Judicial Policymaking

 
A. The (Re)Creation of a National Court of Appeals

In the early 1970s, Chief Justice Burger convened a committee of preeminent legal scholars and practitioners—the “Freund Committee”—to devise solutions for the already excessive, and ever-increasing, caseload faced by the Supreme Court. The trends identified by this distinguished group have only worsened since that time: while the number of certiorari petitions has roughly doubled, both the percentage and number of cases in which the Court grants review have declined dramatically.  The Committee’s principal recommendation was the creation of a National Court of Appeals (NCA), which would review all petitions that would otherwise have been filed with the Supreme Court. It would be the responsibility of the NCA to decide the case on the merits itself, to deny review, or to certify the case for review by the Supreme Court.  A decision by the NCA either to deny review or to refuse certification would be unreviewable by the Supreme Court, and the Supreme Court, in turn, would be unable to decide cases that had not been certified by the NCA.

Devised by a distinguished and balanced committee of experts at the behest of the judiciary itself, the NCA or some variant thereof could be marketed precisely as it was originally intended—namely, as a technocratic solution, devoid of any hint of court-packing, to a practical failure on the part of the Supreme Court that has only become more severe in the years since the Freund Committee’s original report.  The creation of a new appellate court, it can be argued, is needed to close the growing gap between the insatiable demand for appellate review and the Court’s declining certiorari docket.  As a practical matter, however, it would also substantially deprive the Supreme Court of effective control over judicial policymaking.

Limitation of the Supreme Court’s appellate jurisdiction to cases certified for appeal by the NCA is unlikely to pose grave constitutional difficulties.  To be sure, both the case law and the scholarly literature on the scope of congressional power to restrict the Court’s appellate jurisdiction are famously inconclusive.  A provision that limits the Supreme Court’s appellate jurisdiction to cases that have been certified for appeal by a lower federal court, however, does not test the outer boundaries of Congress’s express power under Article III to regulate the appellate jurisdiction of the Supreme Court, because it would have neither the purpose nor the effect of depriving the Article III judiciary as a whole of jurisdiction over certain classes of cases; nor, indeed, does it even strip the Supreme Court of appellate jurisdiction over any particular type of case.  Rather, it merely conditions the exercise of that jurisdiction upon certification by a different Article III court.  There is ample precedent both for vesting exclusive appellate jurisdiction over certain classes of cases in specific federal courts other than the Supreme Court, and for requiring certification of cases before they may be brought before a particular federal court. 

 
B. The Adoption of a “Rule of More than Four”

There is, of course, no guarantee that the Supreme Court would uphold the constitutionality of any scheme that drastically curtails its own power, regardless of what existing case law might suggest.  But there is another promising institutional approach to curtailing the power of the Court that could be adopted in addition to, or even in lieu of, the requirement of certification by the NCA.

In a public lecture in 1982, Justice Stevens proposed that the Supreme Court amend its internal practices to require the affirmative vote of five rather than four Justices to grant certiorari.  Such a reform, he argued, would by definition save the Court from having to decide cases that a majority of the Court did not deem worthy of decision.  A “Rule of More than Four” might well prevent the Court from improvidently granting certiorari, but that would not be its only consequence.  The greater the number of votes required to grant certiorari, the harder it becomes for the Court to hear cases.  Introduction of a supermajority voting requirement would enable even a small minority of the Court to consistently thwart review of the newly created NCA.  Assuming that the parties alternate in power and replace Justices at anything resembling current rates, the Court is unlikely to possess fewer than two or three relatively liberal Justices at any given time.  Accordingly, a Rule of Seven would suffice as a practical matter to ensure that the liberal wing of the Court remains indefinitely capable of shielding the NCA from reversal. 

It is not clear what, if any, constitutional objection might be leveled against such a rule.  If the power to grant certiorari can constitutionally be conferred upon a minority of the Court, it is not obvious why that power cannot be conferred upon a supermajority of the Court instead.  Likewise, there is no obvious reason why Congress could not choose to fix by statute the number of votes required for the Court to grant certiorari.  The Court has long held that the federal courts do not possess any inherent or exclusive power to adopt their own rules of procedure.  Instead, that power belongs under Article I to Congress, which has seen fit to delegate that power to the federal courts by statute (but is by no means obligated to do so).  There is nothing about the Rule of Four to suggest that it enjoys some special constitutional status that lies beyond the reach of Congress.  Indeed, the rule lacks any legal status at all: it is merely an unwritten internal practice that did not emerge until the late nineteenth or early twentieth century.

Nor does it make much difference if the “Rule of More than Four” is characterized not as a rule of procedure, but as a de facto restriction on the Court’s appellate jurisdiction.  As a threshold matter, it is difficult to characterize such a rule as jurisdictional in nature.  A supermajority requirement for granting certiorari would not prevent the Court from hearing any particular type of case, but instead would leave ultimate discretion in the Court to decide whatever cases it chooses.  Although a greater number of Justices would have to agree in order for the Court to grant certiorari, the jurisdiction of the Court itself would remain unimpaired.   Nevertheless, even if the rule is deemed the functional equivalent of a restriction upon the Court’s appellate jurisdiction, Congress has express power under Article III to impose far more onerous restrictions.  Congress is under no obligation to give the Court any discretion over its appellate docket and did not, in fact, give the Court broad discretion until 1925.  If it is for Congress to decide whether to grant the Court discretion over its appellate docket, surely it is also for Congress to decide whether to impose facially neutral and objectively justifiable restrictions on that discretion.  Whether the appropriate head of congressional power is Article I or Article III, it seems clear that Congress has the power to provide that the Court shall not grant certiorari except upon an affirmative vote of three-quarters or more of the Justices.

 II.  How to Maintain Control Over Judicial Policymaking

Once the Supreme Court has been effectively subordinated to the newly created NCA, the next challenge is to ensure that the NCA itself remains consistently liberal, regardless of who wins the next election.  The basic strategy for doing so is to entrust the task of selecting its members to some actor or institution that is not only liberal, but also insulated from the vicissitudes of the political environment.   One way to do this is to delegate selection to a merit commission of the type that has proven popular in many states and also, at times, at the federal level.  Although merit commissions are typically justified as a means of reducing the role of political considerations in judicial selection, it is child’s play to devise a commission that is facially neutral yet systematically favors liberal judicial candidates.  For example, one could simply draw the membership of the commission from a cross-section of relevant legal constituencies­­––say, perhaps, an equal number of sitting judges, law professors, and representatives of the organized bar.  Conveniently, the representatives of two of these three groups—the organized bar and the legal professoriate—are already likely to be at least somewhat left-leaning.

In the long run, however, a system of merit commissions is unlikely to prove a reliable way of entrenching a liberal bias in the NCA.  First, a future conservative government is bound to appoint conservatives to the merit commission and thus transform the commission from a source of resistance to an instrument of influence.  Second, even if it is possible to insulate a merit commission from overt political control, it is highly doubtful that the members of the NCA could be appointed by such a commission consistent with the Appointments Clause.  Any merit commission or other nongovermental body that might be created for purposes of judicial selection would most likely be constitutionally restricted to acting in an advisory capacity, with the result that a future government would remain free to reject its recommendations.

A more effective and elegant way of entrenching the desired bias in the NCA would be simply to give the NCA the ability to select its own members.  In countries with career judiciaries, the responsibility of appointing and promoting judges typically falls upon the judiciary itself.  Even our federal judiciary, however, is characterized by a variety of arrangements in which judges are responsible for selecting one another.  Magistrate judges, bankruptcy judges, and certain tax judges are all appointed by other judges, while the members of both the Foreign Intelligence Surveillance Act Court and the now-defunct Temporary Emergency Court of Appeals are selected by the Chief Justice from the ranks of the existing Article III judiciary without any presidential or congressional input. 

Likewise, the NCA could be given the power to select its own members from the ranks of the existing Article III judiciary.  Although the Appointments Clause provides that “Officers of the United States” must be appointed by the President with the advice and consent of the Senate, the assignment of additional judicial duties to existing Article III judges is an everyday occurrence that has not been thought to trigger the requirements of the Appointments Clause at all.  Such practices as designating district judges and senior judges to sit on other courts and requiring Supreme Court Justices and district judges to ride circuit, for example, are routine, and their constitutionality is by now well settled.

 III.  How to Rig the Law Clerk System

The extent to which judges rely upon their law clerks may be the worst-kept secret of the federal judiciary.  These recent law school graduates are increasingly indispensable participants in what has become the collective enterprise of judging, to the point that judges themselves often describe their relationship with their clerks as one of unhealthy dependency.  But this dependency is a source of institutional vulnerability for an otherwise independent judiciary.  The greater the demands upon any institution, the more susceptible the institution will be to strategies that manipulate the resources that it needs to function.  Likewise, the more dependent that judges become upon the assistance of law clerks, the greater the influence that can be exerted over judges by controlling the amount and type of assistance that they receive.  At the same time, law clerks are significantly more vulnerable to external influence than the judges for whom they work.  It is not simply that they lack the salary and tenure protections of Article III; rather, they are young, ambitious types who are intensely concerned about their post-clerkship opportunities and highly responsive to career incentives, which renders them vulnerable to various forms of manipulation. 

Discussion of the law clerk system generally takes it for granted that judges select their own clerks, who are in turn entirely dependent upon the patronage of their judges.  But there are alternative forms of organization with profoundly different consequences.  The law clerks to the Japanese Supreme Court, for example, are themselves successful career judges who owe their fealty not to the justices, but to the administrative arm of the Court, the General Secretariat, which is responsible for selecting them and enjoys complete control over their professional advancement.  To be chosen as a clerk is the mark of a promising career, but only if the clerk is careful not to offend or disappoint the General Secretariat.  And the bureaucrats in the General Secretariat , in turn, are careful to select cautious, conservative clerks who value adherence to precedent above all. 

It is the manner in which the clerks are organized, however, that truly shapes them into an instrument of bureaucratic influence over the Court and a bulwark against activism by individual justices.  Japanese justices cannot select specific clerks to work on particular cases.  Instead, incoming cases are divided administratively among groups of clerks that are specialized according to subject matter.  Nor are the justices responsible for evaluating the performance of the clerks; instead, the clerks are evaluated on an ongoing basis by more senior clerks who report to the General Secretariat.  Last, but not least, the requirement that clerks must handle difficult or important cases on the basis of group discussion not only secures their ideological conformity, but also enhances their collective power vis-à-vis the justices.  A liberal justice who wishes to challenge the Court’s highly conservative constitutional jurisprudence must be prepared to face down a united front of thirty-seven law clerks, all of whom are experienced and successful judges in their own right.  And even if this hypothetical liberal justice persists in disagreeing, he or she cannot call upon the clerks for help with the drafting of a dissenting opinion.  Given that the Japanese Supreme Court faces a largely mandatory docket on the order of 10,000 cases per year, potential dissidents possess neither the time nor the resources to overcome the will of the bureaucracy.

The same basic approach of turning over the selection and supervision of law clerks to an ideologically reliable institution, and of forging the clerks into a collective unit capable of combatting ideological deviance, could be implemented here.  For decades, various justices have relied upon de facto selection committees consisting partly or entirely of law professors or former clerks. A small handful of law schools produces the lion’s share of the nation’s law clerks, and the faculties of these schools skew strongly Democratic.  The fact that these faculties choose their own replacement members means that they tend to be ideologically self-replicating as well.  And, of course, they canot be voted out of office.  All that remains, then, is to formalize their control over the selection of law clerks.  Imagine, for example, the creation of a clerkship merit commission, consisting of representatives from each of the leading clerk-producing schools, that would recommend a comprehensive slate of clerkship candidates to the NCA, which would be formally responsible for appointing the clerks.  This commission could enhance its leverage over the clerks by evaluating their work and effectively deciding which ones would advance to the Supreme Court.

Nor would it be difficult to combine the Supreme Court’s thirty-odd clerks into a single pool that would work for the Court as a whole.  Along Japanese lines, the clerks could be given responsibility for dividing the cases amongst themselves, thereby depriving the Justices of the ability to reward or co-opt individual clerks with favorable case assignments.  Sensitive or important cases would be tackled by the group as a whole, which would then present a unified front to the Justices.  One or more managing clerks, designated by the merit commission, would oversee these deliberations and assist the commission in evaluating the other clerks.  Needless to say, the clerks would be under no obligation to help ideologically deviant judges to write separate opinions and, indeed, might even be barred from doing so. 

Conclusion

The point of asking how one might rig the federal courts is not to make the world a better place.  Nor, however, is it to encourage actual court-rigging.  Indeed, if candid discussion of court-rigging strategies has any effect at all, it probably serves only to stigmatize such strategies and thus hinder their adoption.  The point of exploring alternative institutional arrangements is, instead, to understand both the consequences of the arrangements that we already possess and the perils of taking those arrangements for granted.  All forms of organization inherently favor certain outcomes over others.  As social scientists have repeatedly demonstrated, there is no such thing as an outcome-neutral structure for aggregating preferences and making decisions.  The outcome of political conflict is invariably influenced by the institutional structure of the forum within which that conflict is resolved.  Exploration of hypothetical scenarios, of the type discussed in this Article, can shed light on the policy consequences of different institutional design choices.  So, too, can the burgeoning scholarly literature in the field of comparative judicial politics, which is rich with insights into the relationship between institutional structure and judicial decision-making.

Acknowledgments:

Copyright © 2011, David S. Law.

David S. Law is a Professor of Law and Professor of Political Science at Washington University in St. Louis.

This editorial is based on Professor Law’s essay in the March 2011 issue of the Georgetown Law Journal: David S. Law, How to Rig the Federal Courts, 99 Geo. L.J. 779 (2011).


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