DOCSLIB.ORG

THE DEVELOPMENT of SUPREME COURT INFLUENCE OVER LOWER COURTS by JAMES A. TODD JOSEPH L. SMITH, COMMITTE

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
THE DEVELOPMENT of SUPREME COURT INFLUENCE OVER LOWER COURTS by JAMES A. TODD JOSEPH L. SMITH, COMMITTE NEITHER SWORD NOR PURSE: THE DEVELOPMENT OF SUPREME COURT INFLUENCE OVER LOWER COURTS by JAMES A. TODD JOSEPH L. SMITH, COMMITTEE CHAIR RICHARD C. FORDING STEPHEN BORRELLI NORMAN BALDWIN STEVEN P. BROWN A DISSERTATION Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of Political Science in the Graduate School of The University of Alabama TUSCALOOSA, ALABAMA 2015 Copyright James A. Todd 2015 ALL RIGHTS RESERVED ABSTRACT Lower court compliance with the superior courts is now a norm in the judicial system of the United States. This dissertation will examine the development of the Supreme Court’s ability to influence the decisions by lower courts. My general theory is that lower court compliance with the Supreme Court became more of a certainty as the federal judicial system developed statutorily, particularly after 1875. I will test the impact that three judicial reforms had (and continue to have) on Supreme Court power over lower courts: the Jurisdiction and Removal Act of 1875, the Judiciary Act of 1891, and the Judges Act of 1925. These reforms, I will argue, added characteristics to the judicial system that help predict compliance, all of which are still present in the system and can be shown to have an effect on compliance in contemporary times. These characteristics include the availability of federal forums for the implementation of constitutional policies, the authoritative communication of Court policies by intermediate courts to trial level courts, and the ability of the Court to select cases that allow it the opportunity to announce clear policy. To test my theory, I will use a variety of historically important Supreme Court policies and employ a coding scheme for lower court cases to test whether a case presents an instance of compliance or non-compliance with the specific Supreme Court policy. ii DEDICATION This work is dedicated to my loving wife, Annie, whose patience, kindness, resourcefulness, wise counsel, editorial skills, and intelligence proved to be a constant help and motivation for me as I brought this project into being. Also, to Mr. Darcy and Buckley, who were always within my reach. iii ACKNOWLEDGMENTS This work has benefited from the assistance of very capable and generous scholars. The first among these is, without question, the chairman of my dissertation committee, Dr. Joseph Smith. He made ample amounts of time for me as I prepared this dissertation. He listened to my ideas, responded to my frequent (and occasionally longwinded) correspondence about this project, and provided me invaluable assistance with my theory building and empirical work. Joe challenged me to improve the work at every turn, and he was extremely patient and supportive along the way. Any strengths of this dissertation are the result of his mentorship; I solely own all of its many weaknesses. I also acknowledge the graciousness of the very dedicated University of Alabama faculty members who served on my dissertation committee: Dr. Stephen Borrelli, Dr. Richard Fording, and Dr. Norman Baldwin (the three of whom, along with Dr. Smith, evaluated and improved this work in its finished form) and Dr. Hong Min Park and Dr. Tony Freyer (original committee members who approved of my idea for this project at its inception). I also acknowledge the service of Dr. Steven Brown of Auburn University, an expert on the Nineteenth Century Court (among other things). This project also benefited greatly from feedback I received on various parts of it at conferences. Dr. Amy Steigerwalt of Georgia State University, Dr. Neal Allen of Wichita State University, and Dr. Michael Giles of Emory University all made valuable contributions in this capacity. Lastly, my friends and colleagues Mr. (soon to be Dr.) Chris Kromphardt, Dr. Anderson Starling, and Dr. Laura M. Sojka read portions of this work and made valuable suggestions towards its improvement. iv CONTENTS ABSTRACT .................................................................................................................................... ii DEDICATION ............................................................................................................................... iii ACKNOWLEDGMENTS ............................................................................................................. iv LIST OF TABLES ....................................................................................................................... viii LIST OF FIGURES ....................................................................................................................... ix CHAPTER 1: The Concept of Lower Court Compliance .............................................................. 1 The Importance of Lower Court Compliance ............................................................................. 4 Judicial Impact Literature............................................................................................................ 6 Theory and Research Focus ........................................................................................................ 7 Organization of the Work .......................................................................................................... 14 CHAPTER 2: Lower Court Compliance and the Judiciary Act of 1789 ...................................... 17 Constitutional Questions in State Courts .................................................................................. 19 Communication and Monitoring in the Circuit System ............................................................ 26 Docket Control and Decisional Clarity ..................................................................................... 37 CHAPTER 3: Interstate Commerce, Lower Courts, and Supreme Court Power ......................... 47 Federal Court Implementation of Supreme Court Doctrine ...................................................... 59 The Jurisdiction and Removal Act of 1875 ............................................................................... 63 Theory and Hypotheses ............................................................................................................. 65 Data and Methods...................................................................................................................... 67 Results ....................................................................................................................................... 69 v Conclusion ................................................................................................................................. 78 CHAPTER 4: The Early Influence of Circuit Courts of Appeals on Supreme Court Power ....... 81 Common Law Cases in Federal Court ...................................................................................... 82 Non-Compliance in the Federal Judicial Hierarchy Prior to 1891 ............................................ 89 The Importance of Intermediate Courts to the Supreme Court ................................................. 90 The Judiciary Act of 1891 (the Evarts Act) .............................................................................. 94 Hypotheses, Data, and Research Design ................................................................................... 96 Results ..................................................................................................................................... 103 Discussion ............................................................................................................................... 108 Conclusion ............................................................................................................................... 109 CHAPTER 5: Docket Control and Clear Policy Making in Supreme Court Constitutional Cases, 1910-41 ................................................................................................ 111 Opinion Clarity and Lower Court Compliance ....................................................................... 123 Theory and Hypotheses ........................................................................................................... 128 Data, Methods, and Research Design...................................................................................... 129 Results ..................................................................................................................................... 137 Conclusion ............................................................................................................................... 146 CHAPTER 6: Supreme Court Policy Implementation Since 1925 ............................................ 148 Court Policy in the Aftermath of the Judges Act .................................................................... 150 Warren Court I: Equal Protection............................................................................................ 154 Warren Court II: The Rights of the Accused .......................................................................... 160 Contentious Areas of Social Policy: Religion, Abortion, and Speech ................................... 164 Conclusion ............................................................................................................................... 169 vi CHAPTER 7: Conclusion ........................................................................................................... 172 REFERENCES ..........................................................................................................................
Load more

Recommended publications
  • WILLIAM HOWARD TAFT HOME Page 1 United States Department of the Interior, National Park Service National Register of Historic Places Registration Form
    NATIONAL HISTORIC LANDMARK NOMINATION NPS Form 10-900 USDI/NPS NRHP Registration Form (Rev. 8-86) OMB No. 1024-0018 WILLIAM HOWARD TAFT HOME Page 1 United States Department of the Interior, National Park Service National Register of Historic Places Registration Form 1. NAME OF PROPERTY Historic Name: William Howard Taft Home (Updated Documentation and Name Change) Other Name/Site Number: Alphonso Taft Home William Howard Taft National Historic Site 2. LOCATION Street & Number: 2038 Auburn Avenue Not for publication: City/Town: Cincinnati Vicinity: State: OH County: Hamilton Code: 061 Zip Code: 45219-3025 3. CLASSIFICATION Ownership of Property Category of Property Private: Building(s): _X_ Public-Local: District: ___ Public-State: ___ Site: ___ Public-Federal: _X_ Structure: ___ Object: ___ Number of Resources within Property Contributing Noncontributing 1 1 buildings 1 0 sites 0 0 structures 0 objects 2 1 Total Number of Contributing Resources Previously Listed in the National Register: 1 Name of Related MultipleDRAFT Property Listing: N/A NPS Form 10-900 USDI/NPS NRHP Registration Form (Rev. 8-86) OMB No. 1024-0018 WILLIAM HOWARD TAFT HOME Page 2 United States Department of the Interior, National Park Service National Register of Historic Places Registration Form 4. STATE/FEDERAL AGENCY CERTIFICATION As the designated authority under the National Historic Preservation Act of 1966, as amended, I hereby certify that this ____ nomination ____ request for determination of eligibility meets the documentation standards for registering properties in the National Register of Historic Places and meets the procedural and professional requirements set forth in 36 CFR Part 60.
    [Show full text]
  • Foundation Document William Howard Taft National Historic Site Ohio December 2014 Foundation Document
    Attachment 12 NATIONAL PARK SERVICE • U.S. DEPARTMENT OF THE INTERIOR Foundation Document William Howard Taft National Historic Site Ohio December 2014 Foundation Document e To 275 v To 275 fton ward li A Calhoun Ho 22 C Street lliam Wi y Taft Road one-wa McMillan Exit 3 Street one-way ue Western Hills n e e To 275 Viaduct v Southern 71 v A A Avenue t r Christ Hospital rn Parking e Ce lb ntral i OHIO bu entrance G 75 u A Exit 50 Willia m Howard Taft Young 52 2 Street E Nationa l Historic Site d e n D e r o m a c y S o e P rchester Av P a a r r k k EDEN w D d r a a y Liberty Street o Krohn R PARK Conservatory Stree y Museum Museum a C I N C I N N A T I g Center n e of Art w t i k Ezzard Char d u r les ea n a R e P Driv v e y A Y kwa l Par K tra Main t IO Cen r ia C e b H t lb P ee i m O lu th Str lu 9 St G o m S reet C 7th St KENTU r reet ee treet St 6th Street To 275 t 5th 50 Pike Fountain Street Taft Square Museum of Art 471 Roebl North 71 Great American Ballpark i n 71 Paul Brown g R E V Stadium B RI r 75 id 0 0.5 1 Kilometer IO KENTUCKY OH g e 0 0.5 1 Mile To 275 To 275 2 William Howard Taft National Historic Site CONTENTS Mission of the National Park Service 1 Introduction 2 Part 1: Core Components 3 Brief Description of the Park 3 William Howard Taft – Influences and Legacy 5 Park Purpose 7 Park Significance 8 Fundamental Resources and Values 9 Interpretive Themes 10 Part 2: Dynamic Components 11 Special Mandates and Administrative Commitments 11 Administrative Commitments 11 Assessment of Planning and Data Needs 11 Analysis of Fundamental
    [Show full text]
  • James Buchanan As Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25
    MARK A. GRABER* James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25 A ntebellum Americans anticipated contemporary political science when they complained about the tendency of embattled political elites to take refuge in the judiciary. Recent scholarship on comparative judicial politics suggests that judicial review is a means by which constitutional framers provided protection for certain class interests that may no longer be fully protected in legislative settings. Tom Ginsburg claims, "[I]f they foresee themselves losing in postconstitutional elections," the politicians responsible for the constitution "may seek to entrench judicial review as a form of political insurance." 1 Such a constitutional design ensures "[e]ven if they lose the election, they will be able to have some access to a forum in which to challenge the legislature."2 In 1801, Thomas Jefferson foreshadowed this strategy. He asserted that the defeated Federalist Party had "retired into the judiciary as a stronghold ...and from that battery all the works of republicanism are to be beaten down and erased.",3 More than a half century later, Chief Justice David S. *Professor of Law and Government, University of Maryland School of Law. This Article was written while the author was the 2008-09 Wayne Morse Chair at the University of Oregon School of Law. I am grateful to the Morse Foundation, Margaret Hallock, and Elizabeth Weber for their remarkable support. I am also grateful to numerous colleagues at the University of Maryland School of Law and elsewhere who read and commented on what follows without giggling too much.
    [Show full text]
  • Protecting the Supreme Court: Why Safeguarding the Judiciary’S Independence Is Crucial to Maintaining Its Legitimacy
    Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 2021 Protecting the Supreme Court: Why Safeguarding the Judiciary’s Independence is Crucial to Maintaining its Legitimacy Isabella Abelite Fordham University School of Law Evelyn Michalos Fordham University School of Law John Rogue Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/faculty_scholarship Part of the Constitutional Law Commons, and the Law and Politics Commons Recommended Citation Isabella Abelite, Evelyn Michalos, and John Rogue, Protecting the Supreme Court: Why Safeguarding the Judiciary’s Independence is Crucial to Maintaining its Legitimacy, January (2021) Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/1112 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Protecting the Supreme Court: Why Safeguarding the Judiciary’s Independence is Crucial to Maintaining its Legitimacy Democracy and the Constitution Clinic Fordham University School of Law Isabella Abelite, Evelyn Michalos, & John Roque January 2021 Protecting the Supreme Court: Why Safeguarding the Judiciary’s Independence is Crucial to Maintaining its Legitimacy Democracy and the Constitution Clinic Fordham University School of Law Isabella Abelite, Evelyn Michalos, & John Roque January 2021 This report was researched and written during the 2019-2020 academic year by students in Fordham Law School’s Democracy and the Constitution Clinic, where students developed non-partisan recommendations to strengthen the nation’s institutions and its democracy.
    [Show full text]
  • “Crisis”: Charting a Path for Federal Judiciary Reform
    University of New Hampshire University of New Hampshire Scholars' Repository University of New Hampshire – Franklin Pierce Law Faculty Scholarship School of Law 7-1-2020 Revisiting and Confronting the Federal Judiciary Capacity “Crisis”: Charting a Path for Federal Judiciary Reform Ryan G. Vacca University of New Hampshire School of Law, [email protected] Peter S. Menell University of California, Berkeley, School of Law Follow this and additional works at: https://scholars.unh.edu/law_facpub Part of the Courts Commons, and the Judges Commons Recommended Citation 108 Cal. L. Rev. 789 (2020) This Article is brought to you for free and open access by the University of New Hampshire – Franklin Pierce School of Law at University of New Hampshire Scholars' Repository. It has been accepted for inclusion in Law Faculty Scholarship by an authorized administrator of University of New Hampshire Scholars' Repository. For more information, please contact [email protected]. Revisiting and Confronting the Federal Judiciary Capacity “Crisis”: Charting a Path for Federal Judiciary Reform Peter S. Menell* and Ryan Vacca** The modern federal judiciary was established well over a century ago by the Judiciary Act of 1891. Over the next seventy years, the structure and core functioning of the judiciary largely remained unchanged apart from gradual increases in judicial slots. By the mid- 1960s, jurists, scholars, practitioners, and policy-makers had voiced grave concerns about the capacity of the federal system to function effectively in the face of ever-increasing caseloads. Heeding calls for reform, in 1972 Congress charged a commission chaired by Senator Roman Hruska to study the functioning of the federal courts and recommend reforms.
    [Show full text]
  • Tiers of Scrutiny in a Hierarchical Judiciary Tara Leigh Grove William & Mary Law School, [email protected]
    College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2016 Tiers of Scrutiny in a Hierarchical Judiciary Tara Leigh Grove William & Mary Law School, [email protected] Repository Citation Grove, Tara Leigh, "Tiers of Scrutiny in a Hierarchical Judiciary" (2016). Faculty Publications. 1834. https://scholarship.law.wm.edu/facpubs/1834 Copyright c 2016 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs Tiers of Scrutiny in a Hierarchical Judiciary TARA LEIGH GROVE* INTRODUCTION .......................................... 475 I. A NEW JUDICIAL STRUCTURE ............................ 478 11. CHANGES IN SUPREME COURT DECISIONMAKING ............... 483 III. IMPLICATIONS FOR CHALLENGES TO THE TIERS OF SCRUTINY ....... .. 487 CONCLUSION . ........................................... 491 INTRODUCTION The standards of scrutiny governing judicial application of, for example, free speech, due process, or equal protection doctrine, are an integral feature of constitutional law. Every lawyer knows that certain regulations will be subject to "strict scrutiny," while others will receive only "rational basis" review. Yet one striking-and puzzling-feature of these standards of scrutiny is their relatively recent vintage. The Supreme Court did not begin to develop these standards until the early-to-mid twentieth century-and even then, the Court did not settle on the rigid rules that we know today for several more decades.' Prior to that time, the Court generally subjected government regulations to a single "reasonableness" test, examining whether a given law was a reasonable means of fulfilling a legitimate government purpose.2 This lack of historical pedigree * Professor of Law and Cabell Research Professor, William and Mary Law School.
    [Show full text]
  • The Supreme Court Opinion As Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court
    The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court Robert Postt In 1921, when William Howard Taft became Chief Justice, the Supreme Court did not occupy the serene and imposing marble building that has since become its contemporary icon.1 Its courtroom was instead located in the old Senate Chamber, whose intimate, elegant surroundings echoed with the debates of Webster, Clay, and Calhoun.2 Its administrative staff and offices were scattered haphazardly and inefficiently throughout the Capitol.3 It was Taft who, with great skill and patience, t I am very grateful for the advice and insight of friends and colleagues. I would particularly like to thank Paul Carrington, Jesse Choper, Meir Dan- Cohen, Mel Eisenberg, Dan Farber, Phil Frickey, Barry Friedman, Howard Gillman, Jim Gordley, Morton Horowitz, Laura Kalman, Robert Kagan, Larry Kramer, David Lieberman, Sandy Levinson, David and Miranda McGowan, Paul Mishkin, William Nelson, Judith Resnik, Dan Rubinfeld, Reva Siegel, and Mark Tushnet. I am especially grateful for the stalwart and heroic efforts of Linda Lye, Cathy Shuck, and Sambhav Nott Sankar. Copyright 2001 by Robert Post. Many of the materials cited and quoted herein are archival and on file with the author. The Minnesota Law Review was thus unable to independ- ently verify this authority. Unless otherwise noted, figures are based on the independent research of the author or annual reports of the Attorney General of the United States. 1. Writing in 1984, Margaret P. Lord noted that to the Justices who first moved into the contemporary Supreme Court building in 1935, "the spaces were too huge, the corridors were too long and cold, the rooms too formal." Margaret P.
    [Show full text]
  • Building the Federal Judiciary (Literally and Legally): the Monuments of Chief Justices Taft, Warren, and Rehnquist†
    The Addison C. Harris Lecture Building the Federal Judiciary (Literally and Legally): The † Monuments of Chief Justices Taft, Warren, and Rehnquist * JUDITH RESNIK ABSTRACT The “federal courts” took on their now familiar contours over the course of the twentieth century. Three chief justices—William Howard Taft, Earl Warren, and William Rehnquist—played pivotal roles in shaping the institutional, jurisprudential, and physical premises. Taft is well known for promoting a building to house the U.S. Supreme Court and for launching the administrative infrastructure that came to govern the federal courts. Earl Warren’s name has become the shorthand for a jurisprudential shift from state toward federal authority; the Warren Court offered an expansive understanding of the role federal courts could play in enabling access for a host of new claimants seeking an array of rights. William Rehnquist is identified with limiting both rights and access in favor of state court and of executive authority. He has been less well appreciated for his role in changing the institutional capacity of the federal courts. During the Rehnquist era, the budget of the federal courts doubled as staff and facilities expanded, in part by way of the largest federal building program since the New Deal. Over the course of the twentieth century and under the leadership of all three chief justices, the judiciary gained an increasingly robust corporate persona. Judges shifted their sights from “court quarters” to custom-designed courthouses † Copyright © 2012 Judith Resnik. * Arthur Liman Professor of Law, Yale Law School. All rights reserved. Judith Resnik. This Lecture built on and is related to the book Representing Justice: Inventions, Controversies, and Rights in City-States and Democratic Courtrooms (2011), co-authored with Dennis Curtis.
    [Show full text]
  • THE SUPREME COURT OPINION AS INSTITUTIONAL PRACTICE: DISSENT, LEGAL SCHOLARSHIP, and DECISIONMAKING in the TAFT COURT Robert
    THE SUPREME COURT OPINION AS INSTITUTIONAL PRACTICE: DISSENT, LEGAL SCHOLARSHIP, AND DECISIONMAKING IN THE TAFT COURT Robert Post School of Law (Boalt Hall) University of California at Berkeley Berkeley, California 510-642-9523 FAX: 510-643-2672 Working Paper 2001-1 Working Papers published by the Institute of Governmental Studies provide quick dissemination of draft reports and papers, preliminary analysis, and papers with a limited audience. The objective is to assist authors in refining their ideas by circulating results and to stimulate discussion about public policy. Working Papers are reproduced unedited directly from the author’s page. 1 Robert Post Draft 11 THE SUPREME COURT OPINION AS INSTITUTIONAL PRACTICE: DISSENT, LEGAL SCHOLARSHIP, AND DECISIONMAKING IN THE TAFT COURT† In 1921, when William Howard Taft became Chief Justice, the Supreme Court did not occupy the serene and imposing marble building that has since become its contemporary icon.1 Its courtroom was instead located in the old Senate Chamber, whose intimate, elegant surroundings echoed with the debates of Webster, Clay, and Calhoun.2 Its administrative staff and offices were scattered haphazardly and inefficiently throughout the Capitol.3 It was Taft who, with great skill and patience, seized the occasion to extract from Congress the resources to construct and design the present structure,4 which, in the words of its architect Cass Gilbert, was intended to † I am very grateful for the advice and insight of friends and colleagues. I would particularly like to thank Paul Carrington, Jesse Choper, Meir Dan-Cohen, Mel Eisenberg, Dan Farber, Phil Frickey, Barry Friedman, Howard Gillman, Morton Horowitz, Laura Kalman, Robert Kagan, Larry Kramer, David Lieberman, Sandy Levinson, David and Miranda McGowan, Paul Mishkin, William Nelson, Judith Resnik, Dan Rubinfeld, and Reva Siegel.
    [Show full text]
  • Inventing Democratic Courts: a New and Iconic Supreme Court
    Inventing Democratic Courts: A New and Iconic Supreme Court JUDITH RESNIK AND DENNIS CURTISÃ The Supreme Court’s building was These are the changes that prompted our designed to look old—as if it had been in choice of the phrase “Inventing Democratic place since the country’s founding, rather than Courts” for this essay’s title. We use the word opening in 1935. The work of judges— “democratic” not in the narrow sense of deciding disputes—also appears as if it were a majoritarian political processes; democracy is continuous practice from ancient times. But more than voting. Indeed, unlike some the point of this lecture and of our book, constitutional scholars who identify unelected Representing Justice: Invention, Contro- judges as a problem in need of special versy and Rights in City‐States and explanation in democratic orders, we argue Democratic Courtrooms,1 is to show that that adjudication can itself be a democratic important aspects of adjudication that today practice—that how this Court has come to do seem intrinsic are, like this building, artifacts its work reflects democratic ideals about of the twentieth century. interactions among disputants and between Simply put, in ancient times, judges were government and citizenry. loyal servants of the state; audience members Democratic norms changed adjudication were passive spectators watching rituals by recognizing all persons as juridical actors of power, and only certain persons were who could sue and be sued, and by requiring eligible to participate as disputants, wit- judges to welcome them all as equally entitled nesses, or decision makers. In contrast, to dignified treatment.
    [Show full text]
  • Building the Judiciary: William Howard Taft and the Politics of Institutional Development
    Building the Judiciary: William Howard Taft and the Politics of Institutional Development Justin Crowe∗ Introduction Juristocracy, as we know from the work of Ran Hirschl and others, now affects power, politics, and public policy in a variety of democratic systems across the globe.1 The very notion of “juristocracy,” the very possibility of rule by judges, however, assumes that courts and judges are institutionally equipped to rule—or, at the very least, that they can or will become so. This assumption is not only unspoken but also unexplored. In other words, in seeking to understand how judges rule, we have largely neglected the conditions that make it possible for judges to rule. Thus, although there are accounts to explain how and why juristocracy emerges, the political consequences of it, its effect on individual rights or structures of power, and the critical role played by judicial review, there is little attention paid to the structural or institutional foundations of juristocracy. Part of the problem is that political scientists ostensibly think of courts as institutionally “thin.” That is to say, they think of courts as lacking the complex institutional features—actors, structures, and rules—that make legislatures, executives, and bureaucracies worth studying. While the executive branch has a vast federal bureaucracy comprising layers of political appointees and civil servants and the legislative branch has a hierarchical system of committees and sub-committees, the judicial branch has only some courts, some judges, and some clerks—or so the lack of attention to the institutional context of the judiciary would have us believe. But the judiciary is not as institutionally thin as a first glance might suggest.
    [Show full text]
  • Project on Government Oversight to the Presidential Commission on the Supreme Court of the United States
    July 9, 2021 Professor Bob Bauer and Professor Cristina Rodríguez, Co-Chairs Professor Kate Andrias, Rapporteur Presidential Commission on the Supreme Court of the United States Dear Professor Bauer, Professor Rodríguez, Professor Andrias, and Members of the Commission: Thank you for requesting written testimony from the Project On Government Oversight to the Presidential Commission on the Supreme Court of the United States. As a nonpartisan government watchdog, we believe strongly in the role of the federal judiciary and the Supreme Court in particular as a vital safeguard of individual rights and a critical check on abuse of power in our constitutional democracy. We are concerned, however, that the increased politicization of Supreme Court selection—coupled with the lack of proper accountability and transparency at the court—is damaging to checks and balances, as well as the legitimacy of this important institution. To address these concerns, last year we assembled the Task Force on Federal Judicial Selection to examine the causes of dysfunction in the selection of Supreme Court justices and to set out reforms. The timing of this invitation to provide testimony to the Presidential Commission is quite auspicious, as just yesterday we released the task force’s new report, Above the Fray: Changing the Stakes of Supreme Court Selection and Enhancing Legitimacy. Our task force includes two former chief justices of state supreme courts, Wallace Jefferson (Texas) and Ruth McGregor (Arizona); Timothy K. Lewis, a former judge on the U.S. Court of Appeals for the Third Circuit; and Judith Resnik, a legal scholar at Yale Law School. This group spent a year examining many of the same concerns that animate the Commission’s review, and we believe that the report could provide a useful blueprint for the work ahead of you.
    [Show full text]