Five Lessons on the Federal Judiciary

Written By Tom Knecht

The Box Score 

1.     Know the fundamentals before you step onto the Court.  

2.     Judges Are Like Basketball Referees. 

3.     The Least Powerful Branch has (Arguably) Become the Most Powerful. 

4.     The Nomination/Confirmation Process is Broken.

5.     The Supreme Court Is Now Just Another Partisan Institution.    

The Complete Game

1.     Know the fundamentals before you step onto the Court.

The United States has a federal system, which means you must abide by the laws of many different governments or could wind up in front of a judge in one of many different courts.  Federal courts deal with federal law, state courts deal with state law, county courts deal with county law, and municipal courts deal with local law. 

The Supremacy Clause of the Constitution (Article VI, Clause 2) says that when state law conflicts with federal law, federal law wins.  This is the judicial equivalent of the tie going to the runner. 

There are two types of cases: criminal and civil (there are others, but forget about them for the moment).  In criminal cases, the government accuses and tries someone for a crime.  Civil cases involve a dispute, usually economic, between two parties.  For example, former New England Patriots tight end Aaron Hernandez was tried and convicted of murder in a criminal court; the USFL’s 1986 antitrust suit against the NFL was a civil case.  

Let’s set aside state and local courts to focus on the federal judiciary. 

As soon as they ratified the Constitution, it became clear that the Framers had messed up in at least one crucial respect: they devised a set of rules but didn’t say who would call the game.  The Constitution is silent on which branch of government would ultimately decide whether something was or was not constitutional.

The Supreme Court soon filled that void by appointing itself the umpire in the case of Marbury v. Madison (1803).  The details of Marbury aren’t that interesting.  What matters is that the Supreme Court declared that it would have the final say on all constitutional matters and actions of the other branches, a practice called judicial review. 

The federal court system is a little like baseball’s farm system.  Ballplayers usually begin and end their professional careers in the A-league.  If they show promise, they move up to AA or AAA ball.  A select few make it to the big leagues.  And in rare cases, the very best prospects go straight to the majors.   

District Courts, like Single-A ball, are usually the first and last stop in the federal court system.  There are 94 District Courts organized into 12 geographic “circuits.”   Plaintiffs file around a half-a-million cases each year, 90 percent of which are decided one way or another by a District Court.  The large number of cases has several consequences:

·       Individuals can wait a long time for their day in court. 

·       Overworked judges might rush through cases. 

·       And plea deals are typical (only 2 percent of federal criminal cases actually go to trial).    

The U.S. Court of Appeals is the next rung up the judicial ladder (~50,000 cases annually).  The 13 appellate courts don’t retry cases, listen to new evidence, or call witnesses.  Instead, a three-judge panel decides whether a District Court followed the correct processes and procedures. 

The Supreme Court is like Major League Baseball.  Just as few baseball prospects make it to the Bigs, very few cases make it to the Supreme Court: the Court gets around 7,000 petitions yearly but only hears between 100 to 150 cases.  Most get there by moving from the District to Appellate Courts.  And just as major league ball clubs can bring a player straight to the Majors, the Supreme Court can use its power of “original jurisdiction” to hear a particularly juicy or urgent case. 

There are nine members of the U.S. Supreme Court.  Nothing says it has to be nine.  FDR threatened to pack the Court if it kept shooting holes in his New Deal.  Today, many progressives want to do the same to counter the Court’s conservative majority.

One of the distinguishing features of American democracy is that it combines a system of checks and balances with a system of separation of powers.  The Courts use judicial review to check the power of Congress and presidents, but how is the judiciary separated from the other two branches?

The Court gains its independence through lifetime appointments.  Short of impeachment, a federal judge can serve on the bench for as long as they like, and there is nothing anyone can do about it.  Theoretically, this gives judges independence from the other two branches and the freedom to make unpopular decisions.  For example, George W. Bush appointed John Roberts as Supreme Court Chief Justice in 2005.  Bush thought he was getting a reliable conservative, but Roberts turned out to be more moderate than many Republicans had hoped (and he’s not all that moderate).  Republicans were hopping mad when Roberts almost single-handedly saved Obamacare by ruling the individual mandate was a tax, but could do little but complain.

2.     Judges Are Like Basketball Referees.

One of the age-old questions in sports is whether referees should call the game the same way in the final seconds as they do in the opening minutes. 

Imagine the refs call a reach-in foul two minutes into Game 7 of the NBA Finals.  It is technically a foul, but it could have easily been a no-call.  Now imagine the same reach-in with the score tied 109-109 and seven seconds remaining on the clock.  Should the refs call a foul in that situation? 

Credit: Isaiah J. Downing-USA TODAY Sport

There are two views on the matter.  Some say a foul is a foul, no matter when it occurs.  Others say that players, not referees, should decide the outcome of a game.  Of course, where we stand on this matter usually depends on whether our player was fouled or did the fouling.

We can relate officiating a basketball game to two different judicial philosophies: judicial restraint and judicial activism.     

[Note: there is a lot of debate about the terms judicial restraint and activism.  Some judicial restrainers prefer to call their philosophy originalism or textualism.  Some folks on the judicial activist side think “activist” is pejorative but haven’t come up with a catchy alternative.  I don’t want to get into all of that for many reasons, not least of which is that I find these semantic arguments boring.]

Judicial restrainters call fouls at the end of games.  They argue that the Constitution and statutory law set the rules of the political game, and judges should exercise little discretion in interpreting those rules.  If the Constitution or public law is ambiguous on a certain point, judges try to figure out what its authors intended when they wrote the thing.  Under this philosophy, judges don’t evaluate whether something is good, bad, or indifferent; they only look to see whether it is consistent with the rule book.  If the American people don’t like those rules, we can change them by encouraging our elected officials to pass new laws or amend the Constitution.  What judges cannot do, however, is allow their values and beliefs to influence their decisions. 

Judicial restrainers are also quite deferential, at least in theory.  They believe legislatures, not judges, should make the big decisions in a democracy.  They also believe in deferring to past decisions made by the Courts (i.e., uphold precedent).  Unless a previous court ruling is clearly in error, judicial restrainers default to stare decisis, Latin for “let the decision stand.”

Judicial restraint is the preferred legal philosophy of conservatives and Republicans. 

Judicial activists don’t call ticky-tack fouls when the game is on the line.  They argue that the Constitution and statutory law might set the game’s rules, but those rules are open to interpretation.  What, for instance, does freedom of speech mean?  Can someone yell fire in a crowded theater?  Burn the flag?  Kneel before the national anthem?  Write a profane letter to teammates criticizing their coach?  All but the most fervent civil libertarian or anarchists would agree there are some limits to what we can and cannot say.  Where to draw that line requires discretion, which is what judges exercise.    

Judicial activists interpret rules in context.  For instance, the 2nd Amendment says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  Let’s leave aside what the Founders meant by a “well regulated Militia” and look at how advancements in weaponry have changed the meaning of “bearing arms.”  Around the time of the Revolution, a good soldier could get off three muskets rounds per minute.  The deadliest weapon in terms of firepower was the cannon, which could be fired four times per minute.  Today, AR-15s can fire 45 rounds per minute, and the deadliest weapon in the U.S. arsenal is the B83 thermonuclear bomb, which yields 1.2 megatons of TNT.  The consequences of bearing arms are much different today than when Revolutionaries shot musket balls with flintlock rifles; I don’t know of anyone who thinks it a good idea for their neighbors to have a thermonuclear bomb in their backyard.  For activists, context matters.      

Judicial activism is the preferred legal philosophy of liberals and Democrats.

One should note that neither side is too principled in its judicial philosophy.  That is, judicial restrainers turn activists, and judicial activists preach restraint, when it suits their purpose.  The current uproar over Dobbs v. Jackson (2022), which overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), is a case in point.  In Dobbs, the conservative majority ignored the long-standing precedent set by Roe and Casey, while the three liberal justices pointed to precedent and stare decisis in dissent.

Legal scholar Lee Epstein and her colleagues have found that justices are often more political than ideological.  That is, conservative judges are more likely to overturn liberal laws, and liberal justices are likelier to overturn conservative laws.   

Source: Lee Epstein & Andrew D. Martin, Is the Roberts Court Especially Activist?  A Study of Invalidating (and Upholding) Federal, State, and Local Laws, 61 Emory L. J. 737 (2012).
Available at: https://scholarlycommons.law.emory.edu/elj/vol61/iss4/3

Epstein also found that justices were more likely to support free speech cases aligned with their politics.  

In sum, every justice has a general theory of jurisprudence—restraint or activist—that shapes their decisions.  And almost every judge is willing to set aside that theory when the need arises.      

3.     The Least Powerful Branch has (Arguably) Become the Most Powerful. 

In Federalist 78, Alexander Hamilton wrote that the judiciary was the least dangerous branch of government because it controls no army or money and cannot enforce its rulings.  Hamilton’s opinion seems partially validated by Supreme Court decisions like Brown v. Board (1954), which held that “separate but equal” schools were unconstitutional.  Brown was undoubtedly a landmark ruling, but many southern school districts simply ignored it until President Eisenhower sent the 101st Airborne to force integration. 

It is hard to argue that today’s Court is the least dangerous branch.  Congressional paralysis has left a governance void that the Courts, and to a lesser extent, presidents, have filled.  Indeed, the Supreme Court is responsible for most of the most significant policy changes of the 21st Century.  Consider just a few:

A large part of the Court’s power is that its decisions are almost impossible to reverse.  Consider your options if you don’t like a Supreme Court decision:

1.     Amend the Constitution.  Good luck!  There have only been 27 Constitutional Amendments in American history, the last one coming in 1992.

2.     Get the other two branches or individual states to nibble at the edges of a Court’s decision.  You can see this strategy play out as pro-choice advocates respond to the Dobbs (2022) decision.  President Biden issued an executive order expanding access to medical abortions, and several blue states have passed laws and constitutional amendments codifying a women’s right to choose.  But no matter what pro-choice advocates do, the Court’s decision means limited or no access to an abortion for millions of women in the foreseeable future.    

3.     Wait for some future Court to overturn the ruling.  Be prepared to wait for a long time, likely forever.  It took 58 years for the Court to realize that its ruling in Plessy v. Ferguson (1896), which legalized racial segregation, was wrong.  And it took almost 50 years for Dobbs to overturn Roe.  The Court has issued around 25,000 rulings in its history, only 146 of which have overturned precedents.  

So, is the Supreme Court too powerful?  The answer depends on three things: 

1. It depends upon the comparison.  The U.S. Courts are far more powerful than courts in other democracies.  And there is little doubt that the tremendous power of the modern Court isn’t what the Founders envisioned.  But whether the Roberts Court (2005-Present) is any more powerful than, say, the Marshall (1801-1835), Warren (1953-69), or Burger Courts (1969-1986) is debatable. 

2. It depends upon how democratic we want our democracy to be.  The judiciary occupies a complicated place in America.  On the one hand, the Courts aren’t very democratic: we don’t elect judges, we can’t really influence their decisions, and many of the Court’s rulings are not what Americans want.  If democracy is about majority rule, then the Courts are certainly undemocratic. 

On the other hand, America is a liberal democracy where the majority doesn’t always get what it wants.  In liberal democracies, citizens have certain rights—e.g., freedom of speech, religion, and of the press—and it is up to the Courts to protect those rights, often from a tyrannical majority who wants to take them away.  For instance, burning the American flag has never been very popular, and in the late 1980s, 78% of Americans thought it should be illegal.  But the Supreme Court ruled in Texas v. Johnson (1989) that flag burning was protected speech under the First Amendment. 

3. What we think of the Court ultimately depends on what we think of its most recent decisions.  If you’re a conservative today, you’ll probably feel the Court has the right amount of power; if you’re a liberal, you probably think the Court has too much power.  The Pew charts below show that the inverse was true just a few years ago.  In short, we tend not to be very principled.

4.     The Nomination/Confirmation Process is Broken.

Federal judges, including Supreme Court justices, are nominated by presidents and confirmed by the Senate.  Although there have been some bitter confirmation fights throughout American history, nothing compares to today’s no-holds-barred, lets-move-the-goal-posts-when-we-can battles. 

Judicial nomination and confirmation have grown increasingly confrontational as (a) politics have become more polarized and (b) the Courts have played a more prominent role in governance (see Lesson #3 above).  In this zero-sum environment, Democrats and Republicans quickly scrap the rulebook when it serves their purpose. 

The modern nomination process began with Robert Bork in 1987.  Ronald Reagan nominated Bork, then a U.S. Court of Appeals judge, to succeed Lewis Powell on the Supreme Court.  Although Bork received the American Bar Association’s highest rating of “well qualified,” Senate Democrats thought the conservative justice was too extreme and voted down his nomination.  Bork was, arguably, the first nominee rejected for political reasons.  And for conservatives, that was the opening shot. 

President Ronald Reagan with Supreme Court nominee Robert Bork. (2023, June 6). In Wikipedia. https://en.wikipedia.org/wiki/Robert_Bork

Fast forward to 2003: George W. Bush is in the White House, and Republicans control both the House and Senate.  Bush’s nominee to the D.C. Circuit Court, Miguel Estrada, had, like Bork, a perfect “well qualified” rating from the ABA.  Unlike the Bork case, Republicans controlled the Senate, which, in theory, should have made Estrada’s confirmation a slam dunk.  But the Senate Democrats had a new trick: the judicial filibuster.  Filibusters were nothing new, but before Estrada, they had never been used to derail a judicial nominee.  After seven failed cloture votes, Estrada removed his name from consideration.

The Democrat’s use of the judicial filibuster meant that judicial nominees would now need 60 votes—the 3/5ths of the Senate required to invoke cloture—to take the bench.  The Democrats delighted in their new parliamentary tool by using the filibuster to block 10 of Bush’s 54 nominees to the U.S. Court of Appeals.  Republicans were outraged.  In 2005, Senate Majority Leader Bill Frist (R-TN) threatened to end the practice by moving to a simple majority vote, what he called “the Constitutional option,” but was better known as “the nuclear option.”  The bipartisan Gang of 14 saved the parliamentary tactic by pledging not to filibuster future nominees.    

It is easy to get lost in this story, so I’ll offer some recaps along the way. 

Recap: Senate Democrats favored the judicial filibuster because they were in the minority; Republicans opposed it because they were the majority party.   

We jump ahead to Obama’s second term, with the Democrats holding a slim majority in the Senate.  The Gang of 14 had long since disbanded, so the filibuster was again in play.  Miraculously, both parties had a change of heart about the dilatory tactic.  Republicans filibustered with abandon; Democrats were outraged over GOP obstructionism.  In late 2013, the Democratic majority invoked the “nuclear option,” ending judicial filibusters for all federal court confirmations except for the Supreme Court. 

Recap: Senate Democrats opposed the judicial filibuster because they were in the majority and ended the practice for all judicial nominees except for the Supreme Court.  Senate Republicans favored the filibuster because they were in the minority and cried foul once it was gone.

Now things get really Machiavellian.  In February 2016, the O.G. of judicial restrainers, Antonin Scalia, died unexpectedly.  Scalia’s death meant that Barack Obama could replace a conservative justice with a liberal one, giving the activist wing a majority on the Court.  The White House faced one small problem: Republicans controlled the Senate.

Hours after Scalia’s death and days before Obama nominated Merrick Garland, the highly respected Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, Senate Republicans announced that any Obama nomination to the Court was dead on arrival.  The GOP’s rationale was that an election was coming up (never mind that it was over seven months away), and they should wait to confirm any nominee.  Senate Majority Leader Mitch McConnell (R-KY) put it like this:

“Of course, the American people should have a say in the court’s direction.  It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on the president and withhold its consent.”

McConnell’s high-flatuin rhetoric notwithstanding, the real reason Republicans wanted to wait was that if Trump could somehow pull off a miracle and win the presidency, he would be able to replace a judicial restrainer with another judicial restrainer and deny the activist wing its majority.  So, the Republican senators refused to consider Garland’s nomination, Trump won the presidency, the GOP held onto the Senate, and Trump nominated Neil Gorsuch, a conservative, to replace Scalia.

Recap: Senate Republicans did not believe in election-year confirmations of Supreme Court nominees, and because they were the majority party, they refused to consider Obama’s nominee.  Senate Democrats did believe in election-year confirmations, but because they were in the minority, they couldn’t get Garland confirmed. 

Democrats were livid.  In retaliation, they filibustered Gorsuch’s nomination (recall that in 2013, the Democrats got rid of the judicial filibuster for all positions except the Supreme Court).  Senate Majority Leader Mitch McConnell (R-KY) then invoked the “nuclear option,” ending filibusters on Supreme Court nominees. 

Recap: Senate Republicans opposed the filibuster when they were in the majority, favored it when they were in the minority, then banned the practice when they were once again in the majority.  Democrats, who invented the judicial filibuster, opposed the thing when they were the majority party, only to turn around and cry foul at its loss now that they were in the minority. 

The least controversial nomination and confirmation in this whole sorted affair was that of Brett Kavanaugh, which is saying something because his confirmation was plenty controversial.  Before the Senate Judiciary Committee, Christine Blasey Ford alleged that Kavanaugh sexually assaulted her at a party when they were both teenagers, a charge that Kavanaugh angrily denied.  It probably didn’t matter what was said at those hearings, Republicans had the majority and Kavanaugh was getting confirmed.  With his confirmation, judicial restrainers now enjoyed a 5-4 majority on the Court. 

Then on September 18, 2020, just 46 days before the Presidential Election, the Supreme Court’s liberal icon Ruth Bader Ginsberg passed away.  Surely the Senate Republicans, who were once so adamant about no election-year confirmations when Obama was in the White House, would stand on principle and deny Trump a third pick to the Court.  Not a chance. 

On September 29, 2020, Trump nominated Amy Coney Barrett to replace the Notorious RBG.  The Senate confirmed Barrett by a party-line vote on October 26, 2020.  The very same Republicans who felt that seven and half months wasn’t enough to consider a Supreme Court nominee somehow managed to get the job done in 27 days.  Amazing.  Check out the following video for an impressive display of GOP rhetorical gymnastics:

For those keeping score, the result of this latest shenanigan was a 6-3 conservative majority and, subsequently, a huge rightward shift on the Court.

Recap: Republicans opposed election-year confirmations when Obama was president but favored them when Trump was president.  Democrats favored election-year confirmations when Obama was president but opposed them when Trump was president.      

Recap of the Recaps. 

Senate Democrats on the judicial filibuster: favor, oppose, favor.

Senate Republicans on the judicial filibuster: oppose, favor, oppose. 

Senate Democrats on election-year confirmations: favor, oppose.

Senate Republicans on election-year confirmations: oppose, favor. 

Analysis of the Recap of the Recap.

There are three takeaways from recent confirmation battles.  First, neither party is principled.  The only rule that seems to hold for both parties is “screw them before they screw you.”

Second, it is good to be the majority party.  The majority party makes the rules, and those rules determine outcomes.

Finally, shenanigans pay off.  The Republicans will dominate the Supreme Court and, by extension, American politics until the Democrats figure out how to break the conservative stranglehold.  The sad fact of the matter is that we live in an era where outcomes matter more than process, and short-term political victories are more important than the long-run health of our democracy.    

This is no way to run a country. 

The majority political party making self-serving confirmation rules is like the defending Super Bowl championship dictating the rules for each game the following season.  Imagine if the Chiefs got to tell the Lions in Week 1: “You will play a base 3-4 defense, cover 3, and no blitzing.”  They might tell the Jags the following week: “No doubling Kelce.”  That is so manifestly unfair that it is stupid even to consider.  But this is the way we seat federal judges.  As long as the parties control the rules of the confirmation and nomination game, we will continue to have a broken process. 

5. The Supreme Court Is Now Just Another Partisan Institution.    

The Framers believed that a lifetime appointment would free federal judges from the nitty-gritty of politics.  The idea is that justices can make tough decisions because, unlike politicians, they are never up for reelection.  And for much of American history, it more or less worked that way.  Consider, for instance, Supreme Court Justice Byron “Whizzer” White, who was also the runner-up for the 1937 Heisman.  John F. Kennedy nominated White, but he ended up siding with the conservative wing of the Court as often as he did the liberals.

Things have changed.  Instead of being neutral arbiters of the law, justices now behave more like hard-core partisans.  As legal scholars Lee Epstein and Eric Posner put it:

“In the 1950s and 1960s, the ideological biases of Republican appointees and Democratic appointees were relatively modest.  The gap between them has steadily grown, but even as late as the early 1990s, it was possible for justices to vote in ideologically unpredictable ways.  In the closely divided cases in the 1991 term, for example, the single Democratic appointee on the court, Byron White, voted more conservatively than all but two of the Republican appointees, Antonin Scalia and William Rehnquist.  This was a time when many Republican appointees — like Sandra Day O’Connor, Harry Blackmun, John Paul Stevens and David Souter — frequently cast liberal votes.

In the past 10 years, however, justices have hardly ever voted against the ideology of the president who appointed them.”  

This chart from Amelia Thomson-Deveaux and Laura Bronner of FiveThirtyEight also shows the historic levels of politicization of the Supreme Court.

As an important aside, we should note that FiveThirtyEight’s chart shows unanimous decisions are still more common than polarized ones.  And there are important cases where justices act counter to type.  For instance, John Roberts and Brett Kavanaugh recently joined the liberal wing of the Court in ruling that Alabama’s congressional voting map unfairly discriminated against Black voters.  The point is that the polarization of the Court is not so absolute that every case ends up in a 6-3 decision.  Nevertheless, the trendlines point to growing politicization.   

The politicization of the Courts was perhaps inevitable given the polarization of American politics and the screwed-up nomination and confirmation process.  But this is the one branch we shouldn’t want to be political.  If judges are like referees, we should want justices who will call a fair game and are not clearly on the side of Team Blue or Team Red.

Tom Knecht
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