The Institutional Development of the Third Branch

US Federal Courts Map

The U.S. federal court system has evolved over time, often in quite haphazard fashion. Prior to the adoption of the federal Constitution of 1787, the United States operated as a confederal political order under the Articles of Confederation. Under this scheme, each of the former thirteen colonies jealously guarded their newly asserted prerogatives as sovereign states even as they banded together in “a firm league of friendship.” Policy among the several states was the product of consensus among the state governments through their delegations in Congress. All courts in the United States were courts of the individual states, exercising jurisdiction over state law matters and, problematically, over interstate matters as well.[1] The constitution of 1787, drafted for the purpose of achieving a more complete (or “perfect”) union, subordinated the states to a set of truly national institutions. Article I of the Constitution instituted a new national congress with expanded national law making powers and a more direct electoral link to the citizenry. Article II instituted the office of the presidency, a chief executive elected on a national basis. Article III included a new federal court system with a Supreme Court at its summit and any “such inferior Courts as the Congress may from time to time ordain and establish.”[2] Members of the Constitutional Convention discussed the specific contours of the federal court system but little and left the details to be determined by Congress.[3] One of the first major enactments of the first sitting Congress was the Judiciary Act of 1789, which created the basic framework of the federal judiciary.

The framework established by the Judiciary Act of 1789 is still somewhat recognizable today. The Act established the federal judiciary in three parts (See fig. 1):

Figure 1: Early Federal Court Structure

Federal Courts 1789-1891

The Supreme Court, consisting of a six-member panel, was to exercise appellate jurisdiction over circuit courts in civil law cases in which the amount in controversy exceeded $2000, as well as over “state supreme court decisions that invalidated federal statutes or treaties or that declared state statutes constitutional in the face of a claim to the contrary” (Wheeler & Harrison 2005, 4).[4] The two lower federal courts—district and circuit—were organized as follows. The act established 13 district courts to serve as federal trial courts, one for each of the eleven states that had ratified the Constitution, plus one each for Maine and Kentucky, which were still subsumed within Massachusetts and Virginia respectively. Each district, consisting of one judge, “served mainly as courts for admiralty cases, for forfeitures and penalties, for petty federal crimes, and for minor U.S. plaintiff cases” (Id.). The act also established three regional circuits—Eastern, Middle, and Southern—in which each of the district courts were contained (See fig. 3). Circuit courts were to meet only twice a year and were not assigned dedicated judgeships. Rather, when it met, a circuit court was to sit as a three-member panel consisting of two Supreme Court justices and the district judge of the district wherein the panel met. This meant, of course, that the justices would have to travel semiannually to an assigned circuit to perform circuit duties—a practice thought necessary by members of Congress to keep the judiciary in touch with the people and to avoid the expense of additional judicial salaries, but which was quite onerous to the justices themselves (See Marcus 1992, 16-22.).

Origins of the Federal Judiciary

The circuit courts were primarily trial courts with complementary jurisdiction to that of district courts, but also served as courts of appeals “for some of the larger civil and admiralty cases in the district courts” (Wheeler & Harrison 2005, 4). Thus, although Article III of the Constitution provided for federal court jurisdiction which could “extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority,” Congress, in the first Judiciary Act, circumscribed federal court jurisdiction in such a way that most federal questions could only be filed in state courts—a restriction meant to allay concerns that the federal courts would displace state courts.[5]

Figure 2: Federal Court Map, 1789[6]

Court Map 1789

Three things are important to note about the establishment of the federal judiciary that are crucial to understanding its subsequent institutional development. First, the convention delegates’ lack of “craftsmanship” (McDonald 1985, 253) with respect to the structure of the federal courts essentially left the structural and functional contours of the court unspecified. Second, the dearth of constitutional specification ensured that the courts would be dependent on the other branches for further development which undermined the status of the courts as a true third branch. The institutional development of the courts would follow a path dictated by other political actors in pursuit of various goals. Congress’ first act of institutional development demonstrates the point poignantly. Though initially conceived as a nationalizing institution, the first statutory enactment pertaining to the federal courts greatly circumscribed its jurisdiction, leaving most matters of federal law to be settled by state courts.[7] The reason lay partly in concerns about the expense of maintaining a fully vested system of federal courts over an extended geographic area—burdensome to a young nation still debt-laden and reeling from war—and partly to allay the suspicion of the states toward centralized power, as these political entities were still zealous for their hard-won independence (See Marcus 1992, 13-30.). As is often the case in institutional development, this early retreat toward localism exerts a powerful influence on the subsequent development of the courts long after the causes which gave rise to it pass into history.

Novus Ordo Seclorum

Third, the establishment of a system of national courts was an unprecedented foray into institutional design. The complexities of the task must have seemed daunting to convention delegates who had already set themselves the task of devising “a novus ordo seclorum” or “a new form of government unprecedented under the sun” (McDonald 1985, 287, 276, respectively). In so doing, the delegates “had rendered all previous political vocabulary obsolete as it pertained to the government of the United States” (Id. at 287). On the other hand, kicking the institution-building can down the road to the first Congress may have helped but little. Justin Crowe tells us that:

Article III gives Congress, an institution charged with a fair number of functions, the primary authority to build the federal judiciary but offers little guidance about which tools to use or what type of structure to erect. Building a judiciary of this sort—a complex one with multiple tiers of judges, varying grants of jurisdiction, and both trial and appellate functions—was an unprecedented task, one that few members of Congress understood intuitively (Crowe 2012, 81).

Therefore, the federal courts, as a complex system, was neither destined to take any distinct form nor was the path taken prescribed by some grand scheme. Rather, the history of the courts has been one of ongoing piecemeal reform in the crucible of American politics.

Building the Judiciary

The federal courts would eventually develop into a full-fledged third branch of American government, but would do so through the strategic action of political principals in pursuit of various goals. “In other words,” says Crowe, “politicians have engaged in institution building consciously and tactically, empowering the judiciary because they saw it in their—and often in their constituents’—interests to do so” (Id. at 274). These interests can be summarized under three broad headings: political goals (e.g., partisan entrenchment), policy goals (e.g., economic expansion, protection of minority rights), and performance goals (e.g., expanding court capacity to handle burgeoning caseloads) (See Crowe 2012, Ch. 8).

Most of the statutory changes to the federal court system over the next century involved an expansion in the number of circuits to keep pace with U.S. westward expansion, population growth, and the admission of new states to the Union. By the late 1860’s, there were nine circuits, each with dedicated judgeships, and nine justices on the Supreme Court, each of whom were only required to perform circuit duties biennially. The early 19th century expansion, though driven by the performance-oriented goal of growing the courts to keep pace with the nation it served, the particular path that growth would take was unwittingly set by the Judiciary Act of 1807. Crowe explains:

As the first instance in which a new circuit and a new justice were added simultaneously, the Judiciary Act of 1807 not only integrated the Western states into the circuit system and expanded the Supreme Court beyond its original 1789 size but also established a model for future institution building. This model had two crucial features. The first was the connection between the circuit system and the Supreme Court—or, more precisely, between the number of circuits and the number of Supreme Court justices. Such a connection was not unprecedented, but neither was it clearly established by constitutional text or political practice…The second feature, prompted by the explicit statement [in the Act] that the newly created vacancy on the court be filled by an individual that would reside in the seventh circuit, required the president to heed concerns about geographical representation when choosing new justices (Id. at 89-90).

These two connections not only served to reinforce regionalism in the national courts, but also tethered a performance-oriented goal such as court capacity to politically-oriented goals such as partisan entrenchment and state aggrandizement. For the six decades following the Judiciary Act of 1807, expansion of the federal courts to meet the demands of a growing nation would be constrained by political parties seeking to ensure that their president would be the one to appoint the new seat on the Supreme Court (as it expanded in line with additional circuits) and by states viewing circuit organizational boundaries as either furthering or diminishing their prestige as states and region (through representation on the Supreme Court).

During the Civil War Reconstruction period, court building was largely policy-oriented (See Crowe 2012, 132-170.). Congress enacted the Jurisdiction and Removal Act of 1875 which expanded circuit court jurisdiction to include “any suit of a civil nature, at law or in equity, now pending or hereafter brought in any State court…and arising under the Constitution or laws of the United States” (federal question jurisdiction), “or in which there shall be a controversy between citizens of different States” (diversity jurisdiction), provided that the amount in controversy exceeded $500 (Judiciary Act of 1875). This act expanded federal court jurisdiction to the full extent permitted by Article III—with explosive potential for federal court workload—but still permitted state courts to exercise concurrent jurisdiction, giving litigants a choice of venue in many instances. Wheeler and Harrison comment on the dual goals reflected in this shift:

It was adopted two days following the 1875 Civil Rights Act, and, as one observer has said, the two statutes together “may be seen as an ultimate expression of Republican reconstruction policies. One recognized a national obligation to confer and guarantee first-class citizenship to the freedman. The other marked an expression of the party’s nationalizing impulse and complementary concern for the national market” (Wheeler & Harrison 2005, 12).

Although hindered at the framing by anti-federalist fears of an over-bearing federal court superstructure, the eventual expansion of federal court jurisdiction appears to have been motivated in part by concerns about fair and impartial justice to litigants and the uniformity in federal law required to sustain a growing national market. On the latter score, one legislator justified the push for a strong national court system by insisting that “Capital…will not be risked in the perils of sectional bitterness, narrow prejudices, or local indifference to integrity and honor” (Id. at 18).

The first major structural change to the federal courts since the Judiciary Act of 1789 came in the form of the Circuit Court of Appeals Act of 1891. Congress, in response to ballooning federal caseloads and a multi-year backlog at the Supreme Court, created a new Court of Appeals within each regional circuit which could hear appeals directly from the district courts. The old circuit courts were stripped of the little appellate jurisdiction they had and, until officially abolished in 1911, served simply as separate federal trial courts.[8] The Act authorized a total of two judgeships for the appellate court of each circuit. Each court of appeals was to sit as a three-member panel consisting of the two circuit judges with a district judge from the circuit or with a Supreme Court justice. As Wheeler and Harrison explain,

The Act provided a right of direct Supreme Court review from the district courts in some categories of cases and from the circuit courts of appeals in others. It routed all other district court cases—notably criminal, diversity, admiralty, and revenue and patent cases—to the courts of appeals for final disposition. The appellate court could certify questions to the Supreme Court, or the Supreme Court could grant review by certiorari. The Act’s effect on the Supreme Court was immediate—filings decreased from 623 in 1890 to 379 in 1891 and 275 in 1892 (Id. at 18).

Thus, some cases were appealed directly from the two trial courts to the Supreme Court while others followed the now-familiar route from trial court to intermediate court of appeals to the Supreme Court.

Figure 3: Federal Courts Structure, 1891:

Federal Courts 1891-1911

The statutory changes to the federal judiciary over the twentieth century basically accomplished three things: they limited mandatory review by the Supreme Court, created specialty courts, and added additional circuits and judgeships to the federal system. These changes resulted from the need to cope with burgeoning caseloads from an expanding economy and growing population extending over a vast geographic area. Figure 4 depicts the growth in case volume in the circuits courts of appeals since their inception.

Figure 4: Caseload Growth Over Time

Federal Caseload Chart 1892-2012

Earlier regionalization persisted, however. Although the full scope of federal jurisdiction permitted under the Constitution was now available to the courts, and Supreme Court justices no longer presided over circuits,[9] the expectation that the circuits would each embody a distinct legal culture and maintain independence from sister circuits remained. Indeed, “the current structure treats the circuits as autonomous units within the intermediate tier. Moreover, the courts of appeals have developed doctrines such as the ‘law of the circuit’ that emphasize their regional focus” (Dragich 1996, 36-37). These appellate courts often render conflicting interpretations of federal law, which means different national law in effect in different regions of the country. While the Supreme Court prioritizes review of these intercircuit conflicts, it lacks the capacity and inclination to hear them all. Many scholars now believe the federal court system is poorly organized for the cultivation of a coherent and uniform body of national law (Carrington & Orchard 2010).

Figure 5: Federal Courts Structure, 1911:

Federal Courts 1911-1952



[1] But, as Crowe 2012, 25-26 notes: “Congress did establish one standing court—the Court of Appeals in Prize Cases, regarded by some as the first ‘federal’ court in America,” which existed for six years and whose rulings “some states simply refused to obey.”

[2] Const. Art. III

[3] McDonald 1985, 253: “The delegates devoted less time to forming the judiciary—and less attention to careful craftsmanship—than they have expended on the legislative and executive branches. In part the judiciary received minimal consideration because it was regarded as the least powerful and least active branch of government.” See also Crowe 2012, 26, 30: “Beyond a general consensus that the new republic would have a federal court system…there was not sustained deliberation about the structure of that system…In essence, the First Congress did in the Judiciary Act precisely what the Convention had declined to do in the Constitution—namely, invent a federal judicial system.”

[4] Not many cases in this period would have met the $2000 jurisdictional threshold.

[5] This restriction on federal jurisdiction was also meant to contain costs in the new federal courts. Marcus 1992, 16-22. Crowe (2012, 42) informs us that “much of the federal jurisdiction granted was, except in admiralty and maritime cases, concurrent with state jurisdiction…”

[6] Wheeler & Harrison 2005, 5.

[7] “Although a few observers believed that the Constitution itself vested federal jurisdiction and that Congress was powerless to alter it, most of those in Congress acted on the assumption that the Constitution merely set the outer limits of their power.” Marcus 1992, 16.

[8] Indeed, “the continued existence of the original circuit courts meant that the federal judiciary included ‘two courts of substantially concurrent jurisdiction, with no little uncertainty and confusion in determining the few instances in which their jurisdiction was not concurrent’” (Crowe 2012, 189) Ironically, “the work of these two overlapping trial courts—each with its own clerks and own records—was increasingly performed by one set of judges” (id.).

[9] Each Supreme Court Justice is still assigned as “circuit justice” over one or more circuits. Since 1911, when circuit riding was no longer required, circuit justice duties have primarily involved receiving and ruling on emergency motions from the circuit and ruling on applications for extensions of filing deadlines. See 28 USC 42 and Rule 22 of the Supreme Court’s Rules. In addition, 28 USC 43 stipulates that circuit justices “shall be competent to sit as judges of the court,” so technically circuit justices can exercise all powers of a circuit judge, though they rarely do in practice.

The Supreme Court: A Countermajoritarian Galahad?

Supreme Court Justices

It is a widely held belief among Americans that the appropriate role of the U.S. Supreme Court is to check the majoritarian excesses of the other two branches of American government. The legislative and executive branches of government are elected by majority vote. In the national legislature, members of the Senate are elected by popular vote in their home-states, and members of the House of Representatives are elected by popular vote from smaller sub-state districts. In the executive branch, the President and Vice-President are elected by national popular vote mediated through the Electoral College system. Rule by majority consent is the legitimating principle of each of these branches. But the third branch is different. The third branch of national government is headed by the Supreme Court, a nine-member panel of judges (called “justices”) who are each appointed to life terms by the sitting President with the approval of the Senate. These judges enjoy such privileges as life terms with good behavior and the guarantee of undiminished compensation in order to at least partially insulate them from the pressures of popular politics. This insulation is often described as judicial independence and for most people it means that judicial decisions will be based upon the dictates of the law, rather than the vagaries of political fashion. Says law professor Amanda Frost:

The Constitution grants federal judges life tenure and protections against diminution of their salaries, which insulates them from various political and social pressures. Those guarantees allow courts to make unpopular rulings, to stand up to the other two branches of government without fear of retribution, and to assure litigants that judges are not beholden either to state or federal interests. (2008, 1625)

This distinct organization and expectation with regard to the third branch of national government reflects a commitment to what is often called the rule of law.

The rule of law is contrasted with the rule of men, implying a legal system which is non-arbitrary. Typically, a political system is held to instantiate the rule of law to the extent that its legal rules are general in nature, prospective in operation, and equal in application to persons without regard to suspect classifications. Often, and most practically, the rule of law is understood as a commitment to individual rights, especially those of minorities against powerful and potentially encroaching majorities. But rather than supposing a strict antagonism between majority rule and the rule of law, some scholars conceive of a balancing act where “The rule of law rests, first, on the inability of the one or the few to control the many, and second, on the willingness of the many to leave some scope for universal rights” (Helmke & Rosenbluth 347-48).

But how is judicial independence related to the rule of law? A commitment to a rule of law system means in part commitment to an institutional arrangement capable of cultivating and sustaining it. If the first two branches are legitimated by majoritarianism—compliance with the wishes of a majority of citizens—then the third branch might be legitimated by its capacity to resist the will of the majority when such will encroaches upon that sphere reserved for individual rights in general and minority rights in particular. Thus, the Supreme Court might be said to be a counter-majoritarian institution meant to serve as a check on the majoritarian tendencies of the other two branches where those tendencies would lead to violation of rule of law principles.

But is the Court truly counter-majoritarian? It depends on what behavior by the Court is required to consider it so. According to Robert Dahl’s “Decision-Making in a Democracy: The Supreme Court as a National Policy-maker” (1957), for the Court to be counter-majoritarian is for it to have the demonstrated capacity and willingness to act contrary to the preferences of the current officeholders of two elected branches, which Dahl refers to as the national majority (284). Dahl assumes that there are several reasons to expect the Court to act in concert with the national majority coalition rather than as a counter-majoritarian “Galahad” in defense of minorities (id.). He cites three problems with the Galahad Thesis, each of a different type: ideological, logical, and factual. Ideologically, it would violate the majority-rule principle upon which the American democracy is based if the Court were to act in a counter-majoritarian fashion. Logically, given the selection of judges by popularly elected political elites, one should not expect the court to be at odds with the national majority coalition—except for very short transitional periods in the composition of the national majority coalition. Factually, Dahl argues, the Court has never acted in such a fashion in its 167-year history up till the time of his writing.

Dahl supports his factual claim with a test he devises in which he examines the frequency, direction, and decisiveness of Supreme Court invalidations of statutory enactments on constitutional grounds. First, to determine the frequency of invalidations, Dahl confines his observations to those invalidations of congressional statutes which occurred within 4 years of enactment, supposing that he is weeding out invalidations of enactments which are no longer supported by a live majority coalition. He then examines the direction of the invalidation, i.e., whether the invalidation favors a minority group. Finally, Dahl examines the decisiveness of the invalidation, i.e., the extent to which the Court’s decision stands and is not circumvented by a willful national majority coalition. Overall, the Court fails Dahl’s test, seldom invalidating laws within the 4 year period, seldom in the direction of minorities, and seldom sustained.  Dahl elaborates his findings by noting that “[f]ew of the Court’s policy decisions can be interpreted sensibly in terms of a ‘majority’ versus a ‘minority’” (294). Rather, policy at the national level is the outcome of conflict, bargaining, and agreement among minorities, no group of preference-holders being large or powerful enough to dominate all others.[1] The true role of the Court is that of legitimizer: “at its best the Court operates to confer legitimacy, not simply on the particular and parochial policies of the dominant political alliance, but upon the basic patterns of behavior required for the operation of a democracy” (295).

Jonathan Casper, in his well-known 1976 response to Dahl, “The Supreme Court and National Policy Making,” finds Dahl’s test of counter-majoritarianism too strict and argues that “the Court participates more significantly in national policy than Dahl’s argument suggests” (50). In particular, Casper points out that there are plenty of instances where a 4-year restricted observation of invalidations is unwarranted and excludes much of the Court’s counter-majoritarian activity. Second, in contrast to his 4-year restrictive rule of invalidations, Dahl allows decades to pass to observe whether the Court’s action is countermanded by the national majority coalition. Third, Casper points out how easily Dahl, by narrow specification of his model, misses Court action which is influential in shaping and influencing legislative enactments through selective interpretation of statutory provisions, a considerable part of what the Court does. Finally, Casper also looks at the Warren Court activism which between 1957 and 1976 alone invalidated one-quarter of all cases ever invalidated and in quite Galahadian fashion. Therefore, by Casper’s definition, the Supreme Court of his day was quite active and counter-majoritarian, even if not in the most restrictive Dahlian sense.

Gerald Rosenberg, in his seminal work, The Hollow Hope: Can Courts Bring About Social Change? (2008), marshaled an astonishing amount of evidence in support of his thesis that it is virtually impossible to achieve significant social reform through litigation. Similar to the Dahlian Galahad, he defines the Dynamic Court view as the belief that “courts can be effective producers of significant social reform [and] in some cases, they can be more effective than other governmental institutions” (27). Rosenberg defines the Constrained Court view as holding “that courts will most likely not be effective producers of significant social reform for three reasons: the limited nature of constitutional rights, the lack of judicial independence, and the judiciary’s inability to develop appropriate policies and its lack of powers of implementation” (15). Rosenberg sees the Court as constrained and ill-suited to defend minority rights.

The Hollow Hope

Rosenberg sets his sights on the famous Brown decision, long considered unassailable proof of the efficacy of the Supreme Court in vindicating minority rights, to demonstrate that the Constrained Court view better characterizes the Court’s role in the Civil Rights Movement. The Court in Brown v. Board of Education (1954), overruled its prior holding in Plessy v. Ferguson (1898) and declared that the practice of segregation was “inherently unequal” and, therefore, in violation of the equal protection clause of the Fourteenth Amendment. This decision ordered the end of public school segregation in the United States. Proponents of the Dynamic Court view see the decision as a major victory for civil rights and a crucial turning point for the movement. Rosenberg points out that—with a few high-profile exceptions—virtually no desegregation actually occurred until after Congress enacted a slew of civil rights legislation in 1964 and 1968. Rosenberg also examines issues such as public accommodations and transportation, public housing, and voter registration. In each case, a clear pattern emerges:

Courageous and praiseworthy decisions were rendered, and nothing changed. Only when Congress and the executive branch acted in tandem with the courts did change occur in these fields. In terms of judicial effects, then, Brown and its progeny stand for the proposition that courts are impotent to produce significant social reform (70).

Thus, “Brown is a paradigm,” says Rosenberg, “but for precisely the opposite view” (id.). Throughout his book, Rosenberg considers, tests, and ultimately rejects theories about indirect ways in which the Court’s action might have contributed to the eventual desegregation of the South. Within this seminal work, Rosenberg deals similarly with other policy areas which are regarded as evidence of a dynamic counter-majoritarian court and with similar results. (See Rosenburg’s tribute to Dahl, one of his early influences)

Plenty of other scholars have found the Court politically constrained. The Court has been found to be influenced by court-curbing measures by the other branches (Clark 2009) as well as by public opinion (Casillas 2011; also see Mishler and Sheehan 1993 for empirical evidence of changes in court composition in response to changes in public opinion and changes in a given panel’s decisions in response to changes). Graber (2005) suggests in Dahlian fashion that the Court is really a politically constructed institution, basically relied upon by the other two branches for political cover. What the Court does on this view is allow for the shifting of politically unpopular or intractable decisions and serves as an anomalous balance-shifter in democratic politics.

This presents a mixed picture both of what it means for the Court to be counter-majoritarian and for whether and to what extent such a thing is desirable. It appears that the Court is a balance-shifter in a highly competitive national policymaking environment. It also appears that the Court is somewhat structurally independent but not totally isolated from politics. This is unsurprising. Justices come from the population and there is no reason to assume that they are political eunuchs. They think and are motivated at least in part by their own priors (Segal and Spaeth 1993, Posner 2008), they are influenced by the political environment (Casillas 2011, Clark 2009, Mishler and Sheehan 1993), and the they operate at a level of the judicial hierarchy where the disputes they are called upon to settle are complex, intractable, under-determined by law alone, and where it falls to them to simply decide. Justice Roberts claimed to call balls and strikes, but it is clear to nearly everyone that by the time a matter reaches the Court, a ball or a strike is simply what one can get a majority to vote in support of. This is not to say that the law exerts no force, but that there is often not enough law to go on at the level of the Supreme Court. What constitutes cruel and unusual punishment? There is considerable room for reasonable minds to differ. What specific activities constitute executive power? The Constitution does not define the term. Does today’s government have a duty to affirmatively act to reverse the effects of its own past misconduct with respect to disfavored minorities? If so, how far can it go before it crosses a different line with respect to other groups? The Court is often called upon to decide. And it does not decide in a socio-political vacuum.

But the Court is able to perform this role in which it decides the intractable disputes over constitutional values with a high degree of diffuse support, certainly higher than the explicitly political branches (Caldeira and Gibson 1992). Maybe the Court enjoys this support because it is understood as being a counter-majoritarian final arbiter of what the law requires. The perception of its unique apolitical role seems to help it maintain an unusual amount of public support which is resilient even in those instances where it disappoints.[2]

Below, Justices Antonin Scalia and Stephen Breyer engage in a lively discussion of their view of the role of the Court, the role of the Justices, and approaches to judicial interpretation. It is worth viewing in its entirety:


[1] I note here that this argument, also known as interest group pluralism, is reminiscent of Madison’s argument in Federalist 10 in favor of a large republic in which faction counters faction:

The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter….

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source.

[2] Think Bush v. Gore (2000) for liberals or NFIB v. Sebelius (2012) for conservatives.

Uncertainties of the Administrative State

Constitutional law professor Laurence Tribe and former SCOTUSblog contributor Joshua Matz came out with an excellent book last year in which they examine the Supreme Court’s jurisprudence on a variety of topics—equal protection, health care, campaign finance, free speech, gun rights, presidential power, privacy, etc.—during the years since Chief Justice John Roberts joined the Court.

Uncertain Justice

I must say that, though the title initially suggested to me a disparaging account of the Roberts Court, I found the work as a whole to be quite even-handed and (dare I say) judicious. The authors do an excellent job aiding the reader to appreciate the nuances and merits of conflicting values which divide our country and often the Court itself. In fact, I am now inclined to interpret the “Uncertain” of the title as referring to the inherent intractability of certain conflicts of constitutional values or textual interpretation.

As I penned my last post discussing the controversy over immigration and administrative action, I recalled a relevant passage from Chapter 7, “Presidential Power: Hail to the Chief.” Therein, Tribe and Matz relay the “clash” between Roberts’ majority opinion and Breyer’s dissent regarding the appropriate degree of control Presidents ought to exercise over administrative agencies.

The case was Free Enterprise Fund v. PCAOB. The Sarbanes-Oxley Act of 2002 created the Public Company Accounting Oversight Board (PCAOB). The act established a 5-member board in which the board members could only be removed by the SEC and only for “good cause.” The SEC is an independent agency, already enjoying some degree of insulation from presidential control. By custom, its commissioners can only be removed by the President due to “inefficiency, neglect of duty, or malfeasance in office.” Thus, no direct lever of control existed between the President and the PCAOB. The Court struck down the removal provision by 5-4 decision because it failed to vest removal authority directly in the hands of the President.

Tribe and Matz explain the majority’s reasoning:

Writing for the Court and quoting Article II, Roberts grounded his opinion in the importance of formal control: “The President cannot ‘take care that the Laws be faithfully executed’ if he cannot oversee the faithfulness of the officers who execute them….Neither the President nor anyone directly responsible to him, nor even an officer whose conduct he may review only for good cause, has full control over the [PCAOB].

The co-authors next explain Breyer’s reasoning in dissent:

Describing the reach of federal law, Breyer emphasized that, “given the nature of the government’s work, it is not surprising that administrative units come in many different shapes and sizes.” Because of this diversity, he reasoned, the Constitution recognizes “the various ways presidential power operates.” Such a pragmatic approach doesn’t take presidential power to fire as the sine qua non of control over agencies. Instead, it acknowledges that, “as human beings have ever known since Ulysses tied himself to the mast so as safely to hear the Sirens’ song, sometimes it is necessary to disable oneself in order to achieve a broader objective.” By freeing bureaucrats from political control, Breyer reasoned, we can enhance their legitimacy and credibility as technocrats and neutral arbiters.

These conflicting points of view about how much control presidents should have over administrative agencies is not only relevant to the current controversy over immigration policy, but goes to the difficulty of squeezing the administrative state into our conceptions of tripartite government. Agencies are created and enabled by congressional statute yet are placed structurally within the executive branch under the charge of the President, the chief executive officer. In addition to their executive function, agencies operate in a quasi-legislative and quasi-judicial capacity, thus blurring the traditional distinctions between each governmental power even as they facilitate the effective exercise of those powers. Agencies are expected to be accountable to the people via the people’s representatives, who themselves are often at odds with one another. If that is not enough, balanced against the democratic principle is the interest in efficient and technically expert administration somewhat removed from the vagaries of day-to-day politics. Given these muddled expectations, it is no surprise then that reasonable minds differ on how administrative agencies should work in practice.


Tribe discusses his book below. Of particular note, he highlights the fact that the Court is less partisan than the popular press would lead us to believe. For example, the Roberts court has been unanimous 1/3 of the time. Only 1/5 of the time has the Court been divided in 5-4 decisions, and 1/3 of those involved unlikely alliances of liberal and conservative justices. For more discussion of Supreme Court decision making, see my post here.


Another Obamacare Challenge

So Obamacare is on the ropes again. There is currently a split in the circuit courts of appeals over whether the ACA permits health care exchanges established by the federal government to provide the subsidies that make the coverage affordable in those states which have declined to establish their own exchanges. As Tom Goldstein over at SCOTUSblog succinctly explains:

Here is the legal dispute.  The law establishes a formula for determining the tax credits.  It applies to insurance that is purchased through an exchange “established by the State.”  It does not mention the federal exchange.  The challengers argue that this language is clear:  the tax credits are available only for purchases through the state exchanges.

Courts are required to apply the laws that Congress enacts and to strike down rules that violate clear statutes.  On the other hand, Congress passes a lot of laws that aren’t clear.  In those cases, courts are required to uphold rules that reasonably resolve ambiguities in the statutes.

One court of appeals (the D.C. Circuit) ruled in a split decision that the ACA clearly prohibits the subsidy for purchases from the federal exchange.  Another court of appeals (the Fourth Circuit, based in Richmond, Virginia) held unanimously that, because the law is unclear, the subsidies can be provided to everyone.  Two other challenges to the rule are still waiting for decisions from the lower courts.

Goldstein’s full text can be found here. For really good background, see here and here.

(The success of the challenge thus far is quite ironic given the trend toward the federal exchange.)

Of course, the functionality of the law turns in large part on whether the subsidies are available in the 36 states with federally-run or partially-run exchanges. In part for that reason, I seriously doubt the challenge will ultimately succeed. I may say more on this when I get a chance…



Supreme Court Decision Making: Institutions Matter

In my last post I surveyed two ways students of the Supreme Court have conceived of judicial decision making: the legal model and the attitudinal model. As I noted previously, although the attitudinal model is now the predominant view among political scientists, there are many notable scholars who insist that attitudes (i.e., political ideology) alone cannot account for the richness of the Court as an institution and judges as complex, social creatures. The diversity of this literature presents a challenge for anyone attempting a quick summary. Based on my own makeshift categorization, the discussion proceeds as follows. First, I discuss studies which emphasize the internal dynamics of Court decision making; next, the external or inter-institutional dynamics; finally, I discuss studies which remind us of the more human aspects of judicial decision making, such as role orientation and reputation.

Deciding to Decide

Internal Dynamics

Research on the intra-court factors that influence judicial decision making can be subdivided into studies which examine the easily overlooked bargaining over the agenda-setting of the court (Perry 1991; Black & Owens 2009) to consensus building on the disposition of a case, to bargaining over the nuances of the opinion itself which contributes to the formation of consequential legal doctrine (Maltzman, Spriggs, & Wahlbeck 2000). This literature can also be distinguished methodologically, especially between scholars who favor highly technical quantitative analysis (e.g., Epstein & Knight 1997) and those, like Gillman, who favor “traditional legal-historical methods (e.g., reviewing conference notes, draft opinions, memos, and memoirs) in order to better understand the justices’ jurisprudence and deliberations” (Gillman 1997b, 11).

One important set of questions about Supreme Court decision making involves agenda setting. Black and Owens provide a helpfully succinct description:

The agenda-setting process begins when a party in a lower court loses, wants the Supreme Court to review her case, and files a petition for a writ of certiorari (‘‘cert’’) or an appeal with the United States Supreme Court. Before the Court decides whether to grant or deny review to it, the petition must first make the ‘‘discuss list.’’ This list is created and circulated by the Chief Justice, who initially identifies the petitions he thinks deserve formal consideration by the Court. Each associate justice can add petitions to the discuss list that they think merit the Court’s attention…If four or more justices vote to hear the case, it proceeds to the merits stage, where it receives full treatment (Black & Owens 2009, 1063).

Of the thousands of requests for cert each year, less than one hundred survive this filter. Indeed, according to Chief Justice John Roberts2013 Year-End Report, 7,509 cases were filed in the Court, “and 76 were disposed of in 73 signed opinions.” About one percent of cases filed made the cut! Scholars speculated for decades about the factors that drive this critical determination. Some scholars found evidence that justices look for cues within the cert petitions themselves, signals from the number or content of amicus curiae briefs, or signals from the executive branch (Tanenhaus, Schick, & Rosen 1963; Caldeira, Wright, & Zorn 1999; Brenner, Whitmeyer, & Spaeth 2007; Collins 2007). Many of these practices were also confirmed through the use of in-depth elite interviews (Perry 1991 interviewed five justices, sixty-four former U.S. Supreme Court clerks, seven DC Circuit judges, four U.S. solicitors general, and one Court staff member). Recently, Black and Owens were able to confirm that the justices are strategic “policy-driven agenda-setters who analyze both the Court’s expected policy decision and the status quo” (Black & Owens 2009, 1067) but that significant predictive power can be attained when legal factors such as lower court conflict and other indicators of legal importance are incorporated the an otherwise attitudinally based model.

Other scholars have taken a more expansive view of agenda setting, finding strategic interaction among the justices at later stages in the decision making process:

Court scholars focus the discussion of agenda setting on the Court’s vote on whether to place a case on its docket. Yet, because any individual case raises numerous issues that can potentially be addressed in an opinion, agenda setting occurs in at least two other decision-making stages: the assignment of the majority opinion and the writing of that opinion (Maltzman, Spriggs, & Wahlbeck 2000, 33).

Crafting Law on the Supreme Court

Maltzman, Spriggs, and Walhbeck seek to improve upon the attitudinal model by emphasizing judicial behavior as strategic behavior motivated by policy preferences but mediated through institutions, both formal and informal, which render Supreme Court decision making a highly collegial and interdependent process. They also return attention to the content of the judicial opinion which is obscured by the attitudinalist tendency to reduce complex holdings to dichotomous outcomes (but see Ruger, Kim, Martin & Quinn 2004). The Court, Maltzman, Spriggs, and Wahlbeck argue, is more than the aggregation of individual policy-seekers. Each element of the opinion is determined by a collegial game in which “A strategic justice…pursues his or her policy preferences within constraints determined by the interdependent nature of decision making on the bench” (Id. at 18).

To test their theory, the authors rely on the Spaeth-Gibson judicial database, calling it “the most reliable and comprehensive record of Supreme Court decision making yet to be uncovered and mined” (Id. at 27), plus assignment sheets, docket sheets, and circulation records newly made available from “the private papers of Supreme Court justices” (Id. at 26). What they find is that policy “preferences alone do not dictate behavior on the U.S. Supreme Court” (Id. at 147). Holding attitudinal factors constant, justices are, for example, significantly more likely to join an opinion once a majority coalition has formed or when the opinion writer has cooperated in the recent past, and increasingly less likely to join as their colleagues signal disagreement through internal memos. Each of these collegial factors significantly increases predictability over attitudinal factors alone. In short, “A justice’s decision to join is also influenced by concurrent choices of his or her colleagues” (Id. at 143).

External Dynamics

Scholars have also recently begun studying the broader institutional environment in which the Court operates. For example, some studies deal with the impact of public opinion on Supreme Court decision making (McGuire & Stimson 2004; Giles, Blackstone, & Vining 2008 each find the Court responsive to public opinion), while others examine the Court’s behavior vis-à-vis other governmental actors. With respect to the latter, scholars such as Marks (1989) and Clark (2009) theorize that the justices on the Court may moderate their preference-seeking behavior in order to avoid potential backlash from the other two branches which might generate less favorable legislative outcomes. This literature tends to distinguish sharply between sincere and strategic voting behavior by the justices and has focused on veto points in the elected branches within which the Court has latitude to pursue its sincere policy preferences. To date, this literature has been more formal than empirical and reached few settled conclusions. One question which remains is whether the Court, having reached internal consensus, should ever find it very likely that Congress, with its many veto points, will muster the votes necessary to overrule it. Due to selection effects, Segal (1997) finds it highly unlikely that the Court’s membership will have extreme preferences relative to congressional majorities. Graber (2005) suggests that the Court is “established and maintained by elected officials” to entrench their own constitutional vision and shift responsibility. Even if the Court did consist of preference outliers, Segal (1997) argues, there is no reason to assume, as many separation-of-powers models do, that Congress will have the last word, especially with respect to constitutional issues. Finally, Owens, in a rare empirical test of the separation-of-powers approach found that “Across every model tested, justices failed to exert behavior consistent with a separation of powers effect” (Owens 2010, 412).

Justices are People Too

Other students of the Court, in reaction to the dominance of the attitudinal model and the emergence of strategic-institutional models have thought it prudent to remind their colleagues that Supreme Court justices are both more and less than policy-preference maximizers and political strategizers. After all, justices are “still human, and thus still somewhat vulnerable to the pull of reputation, the desire for esteem, and the wish to avoid public criticism” (Schauer 2000, 630). Justices “make arguments that are based on more than personal policy preferences” and “the reasons they offer in opinions matter to other justices” (Richards & Kritzer 2002, 307), other officeholders (Clark 2009), and members of the public (Casillas, Enns, & Wolhfarth 2010). “Courts and judges are certainly part of the political world, but they are also part of a distinctive legal culture” (Richards & Kritzer 2002, 305) in which members apparently value law for its own sake. While cites to precedent and carefully reasoned arguments might certainly be described as strategic behavior (Epstein & Knight 1997), Gillman (1997b) cautions against the conceptual strain that results from a strategic-institutionalist propensity to re-characterize all institutionally-guided behavior as constrained preference maximization. For Gillman, law and courts scholars should not assume that the goals pursued by justices are exogenous to the value-laden institutions in which they are situated, and the best method for taking legal institutions seriously are “traditional legal-historical methods (e.g., reviewing conference notes, draft opinions, memos, and memoirs) in order to better understand the justices’ jurisprudence and deliberations” (Gillman 1997b, 11).


Like Gillman, Frederick Schauer (2000) also warns that Supreme Court decision making should be viewed as other than mere attitudes and strategy. He calls for more empirical research on the more “inglorious determinants of judicial behavior” such as the ambition and reputation (Id. at 615). While Supreme Court justices might seldom have ambition for higher office, there is no reason to suppose that they might not “also desire to have an impact for the sake of having an impact” (Id. at 633). Scholars cannot neglect the possibility that justices “could plausibly select outcomes, or select substantive or methodological ‘trademarks,’ for the purpose of maximizing their own influence” (Id.). [See New York Magazine‘s recent interview with Justice Antonin Scalia in which he claims to have no concern for his intellectual legacy.] Though we have certainly come a long way in our understanding of Supreme Court decision making since the days of the naïve legal model, “perhaps,” says Schauer, “it is now time to investigate whether ideologies and attitudes are not all that ideologists and attitudinalists claim that they are” (Id. at 636).


So, what factors drive decision making on the Supreme Court? This review of the law and courts literature has revealed quite a bit. We have strong evidence that judges are driven by their policy preferences. This point is no longer controversial. What is becoming increasingly clear, however, is that this picture is very incomplete. Justices are obviously influenced by aspects of their institutional environment both within the Court and without. As Brigham put it, “Institutions share a capacity to order social life because people act as though they exist, as if they matter” (Brigham 1999, 20). Most recent scholarship has taken the attitudinal insight to heart, and then moved forward to specify its limits. More than mere curiosity motivates this inquiry into judicial motivation. As Frank Cross put it, if we conceive of the law as “ropes binding a judicial Houdini,” it behooves us to discover “which brand of rope and which type of knot are the most effective and inescapable” (Cross 1997, 326).


Supreme Court Decision Making: Just Politics?

Over time, American political scientists have conceptualized the work of the judicial branch in several distinct ways, producing a rich literature on judicial decision making. A disproportionate share of that literature focuses on the U.S. Supreme Court. This focus is unsurprising given the Court’s distinct role in the American legal system. The Supreme Court is the court of last resort, and it is the unique province of the Court “to say what the law is” (Marbury v. Madison, 1803).  The Supreme Court is also distinct from the other branches of national government. It is the only branch whose members are unelected, its members are the least publicly visible, and their work the most obscure. Perhaps in part for these reasons, the Court enjoys much broader support among the American public than its sister branches. Meanwhile, students of the Court have often asked “What drives Supreme Court decision making?” In this post, we’ll take a look at the traditional legal formalist understanding of Supreme Court decision making and then discuss the attitudinal model which has supplanted it. In a follow-up post I will survey some alternatives to the attitudinal model which purport to offer a more complete picture.

The Good Ole Legal Model

The traditional way of thinking about judicial decision making, legal formalism (or “legalism”), can trace its lineage back to such notable figures as Sir William Blackstone. Legal formalists emphasize the role of legal considerations—adherence to precedent, strict interpretation of relevant legal texts, and the law as a closed logical system—in shaping judicial reasoning.[1] By the early twentieth century, “realists” began pointing out the often indeterminate and nonbinding nature of legal considerations—e.g., the availability of precedents to support either outcome in an adversarial dispute and the hopelessly vague or ambiguous nature of many statutes—and alleged that judicial decision making was more about who was deciding the case than any objective body of law from which outcomes could be logically deduced.[2] These criticisms have the most force when it comes to the Supreme Court because one might expect cases for which there is a straightforward legal answer to be resolved at a lower level if litigated at all. In fact, while scholars have come to agree that ideology plays a much smaller role in the lower federal courts (Zorn & Bowie 2010), and these courts are generally “faithful agents” of Supreme Court doctrine (Haire, Songer, & Lindquist 2003, 154), the Supreme Court itself seems to be another story.

Because of the indeterminate nature of legal considerations at the level of the Supreme Court, a great deal hinges on the motivations of each justice. By the mid-twentieth century, it was to this study that political science research and some empirical legal research soon turned. Broadly, the shift toward this type of inquiry was dubbed “behavioralism”. Behavioralist “models emphasize the role of judges’ social background or personal attributes on judicial decisions” (Heise 2002, 833). The early behavioralists looked for patterns related to the judges’ socio-economic background, race, sex, and prior work experience. However, each of these factors was found to have very limited explanatory power:

Consequently, Dan Bowen’s pronouncement thirty years ago about the efficacy of behavioralism judicial decision-making models still holds force today: “A final inescapable conclusion about the explanatory power of the sociological background characteristics of [judges] is that they are generally not very helpful” (Heise 2002, 835).

In short, studies in this area found little relationship between social background characteristics and judicial decisions (cf. Segal & Spaeth 1993, 231-234). Scholars next began exploring whether a judge’s political ideology could be used to predict judicial decisions, and the attitudinal model was born.

Along Came the Attitudinal Model

Following the realist critique of legal formalism, judicial scholars Jeffrey Segal and Harold Spaeth published The Supreme Court and the Attitudinal Model in 1993, a culmination of work begun decades earlier by C. Herman Pritchett’s The Roosevelt Court (1948), Glendon Schubert’s The Judicial Mind (1976), and crystalized by Spaeth in the intervening years. Although it was Schubert who “first provided a detailed attitudinal model” (Segal & Spaeth 1993, 67), Spaeth’s greatest contribution to the field came in the creation of the U.S. Supreme Court Judicial Data Base in 1990. This data base constituted a major breakthrough in the ability of scholars to reliably and comparably test hypotheses about Supreme decision making. According to Djupe and Epstein:

Prior to the Spaeth Data Base, judicial specialist relied on several publicly-available data sets…or collected their own data. Either way, issues of verification, reliability, and the like went virtually ignored; neither Schmidhauser’s nor Schubert’s, nor Ulmer’s documentation contain any statements about reliability or verification; of the ten articles on judicial decision making in the American Journal of Political Science in the decade prior to the appearance of the Spaeth Data Base (1980-90), only two were attentive to matters of replication or reliability (Epstein, Walker, and Dixon 1989; Gates 1987)—and, in all likelihood, neither would pass muster under contemporary standards (Djupe & Epstein 1998, 1012-13).

The Supreme Court and the Attitudinal Model was indeed the culmination of a tremendously successful research program establishing the prima facie case for the validity of the attitudinal model. However, the work did come under increasing criticism for its lack of a direct test of the influence of legal factors. An updated work, The Supreme Court and the Attitudinal Model Revisited (2002) was Segal and Spaeth’s answer to this criticism. The discussion that follows focuses on key features of the later work.

The Supreme Court and the Attitudinal Model Revisted

The model they present is premised upon a simple assertion: “the Supreme Court decides disputes in light of the facts of the case vis-à-vis the ideological attitudes and values of the justices” (Segal & Spaeth 2002, 86), rather than the legal considerations with which most legal academics concern themselves. In their work, Segal and Spaeth attempt first to discredit the legal model and then to establish their own attitudinal model as the best explanation of Supreme Court decision making. We’ll explore some of the technical details of their work and consider some limitations.

Though legalists vary somewhat, argue Segal and Spaeth, they are united by a common belief that law matters in judicial decision making. While legalists scour Supreme Court opinions for insight into the justices’ reasoning, Segal and Spaeth, in behavioralist fashion, insist that the only relevant factor is what the justices do in fact. All of the legal reasoning, cites to precedent, and quibbling over statutory text obscures the fact that justices are merely voting their ideological preferences. In furtherance of this claim, Segal and Spaeth devise a test to determine whether precedent can be observed to exert any “gravitational force” on justices. They devise a test examining the progeny of non-unanimous precedent-setting cases to determine whether justices who dissented in the original case conformed to the precedent in progeny cases despite their previously demonstrated preferences to the contrary. The authors find that “the justices are rarely influenced by stare decisis” and “rather easily avoid supporting precedents with which they disagree” (Id. at 298, 310).

Dismissing many other legalist arguments as non-falsifiable and therefore unworthy of full consideration, Segal and Spaeth then proceed to present the attitudinal model as an alternative explanation of Supreme Court decision making. To test their model, the authors “examine all Supreme Court decisions dealing with the reasonableness of a search or seizure from the beginning of the 1962 term through the end of the 1998 term (N = 217)” (Id. at 316). The measure the effect of several factors on “the decision of the Supreme Court whether or not to exclude evidence or find a search unreasonable. A liberal decision is one that prohibits the use of questionably obtained evidence; a conservative decision is one that admits such evidence” (id.). In measuring attitudes, the authors rely on “newspaper editorials that characterize nominees prior to confirmation as liberal or conservative insofar as civil rights and liberties are concerned” (Id. at 321).

From a predictability standpoint, the authors’ model performs surprisingly well. Specifying the dependent variable as each justice’s vote in the search and seizure cases (N = 1,900), Segal and Spaeth find that attitudes alone “achieved a 70 percent prediction rate, for a 32 percent reduction in error over the justices’ mean of 56 percent” while the facts alone produced a 62 percent prediction rate and 14 percent reduction in error (Id. at 324). “This suggests,” say the authors, “that in predicting votes, one is clearly better off knowing the attitudes of the justices than the facts of the case” (Id. at 325).

While the rate of prediction is significant and lends substantial support to Segal and Spaeth’s arguments, many scholars consider it premature to declare the victory of the attitudinal model. One obvious drawback to this approach is its quite narrow application heretofore. Segal and Spaeth only test their model on a very limited range of cases: non-unanimous Supreme Court civil liberties cases on the merits. All other legal subject areas  and cases decided on procedural grounds are necessarily excluded. Unanimous decisions, roughly one-third of all Supreme Court decisions (Epstein, Landes, & Posner 2012), are also excluded. Even on their strongest ground, predictability, the authors must demonstrate that their model can be applied more generally before many other scholars will concede.

Moreover, predictability is not the only test of a model’s worth. A good social science theory not only predicts but explains the phenomenon in question. Several scholars charge that the attitudinal model is overly dismissive of the immense legal-institutional environment in which the justices operate (Black & Owens 2009). Any account of what drives Supreme Court decision making which does not deal seriously with justices as individuals operating within a diverse institutional network is fatally incomplete. “Thus, theories of judicial behavior must become more complex if they are to achieve a higher level of explanation and prediction” (Gibson 1983, 7). To be sure, most alternative theories of Supreme Court decision making take for granted that attitudes play a significant role, but go on to specify ways in which the relevant legal institutions matter (See Gillman 1997a). In my next post I will survey some of those theories.

[1] Edward Levi’s classic An Introduction to Legal Reasoning (1962) provides a full discussion of legal textual interpretation and case analysis.

[2] See, e.g., Laura Kalman’s Legal Realism at Yale, 1927-1960 (1986).