DOCSLIB.ORG

Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint INDEPENDENT JUDGES, DEPENDENT JUDICIARY: INSTITUTIONALIZING JUDICIAL RESTRAINT JoHN A. FEREJOHN* & LARRY D. KRAMER** Many commentators believe that judicial independence and democratic accounta- bility stand in irreconcilable tension with each other. Professors Ferejohn and Kramer suggest that these competing ideals are not themselves goals, but rather are means to a more important end: a well-functioning system of adjudication. Either or both may be sacrificed in the pursuit of this overarching objective. The United States Constitution seeks to achieve this objective by giving individualjudges enor- mous independence while placing them within an institution that is highly suscepti- ble to political control. The resulting vulnerability creates a dynamic that makes federal courts, and especially the Supreme Court, into effective self-regulators. The Authors argue that, seen in this light, the system of institutional self-restraint en- compasses a broader range of judicial doctrines than has been understood previ- ously. The Article concludes that reconciling the judiciary's twin goals of democratic legitimacy and legal legitimacy requires a more balanced view, for maintainingthe judicial branch's independence lies as much or more in the judge's own hands as in external politicalpressures. Platitudes become platitudes only because they are so obviously true. Take the following: "[T]he independent federal judiciary has been a powerful tool in guarding the Constitution and the rights of individuals."' Now who would disagree with that? How about: A constitutional democracy must "include provisions making the judici- ary accountable to both the political branches and the electorate."'2 Any objections? Statements like these, as vapid as they are axiomatic, are the sort of thing that men and women on both sides of a discussion * Carolyn S.G. Munro Professor of Political Science and Senior Fellow of the Hoover Institution, Stanford University; Visiting Professor of Law and Politics, New York Univer- sity School of Law. B.A., 1966, California State University, Northridge; Ph.D., 1972, Stan- ford University. ** Samuel Tilden Professor of Law, New York University School of Law. B.A., 1980, Brown University; J.D., 1984, University of Chicago School of Law. This Article was origi- nally prepared for and presented at the inaugural conference of the Center for Interdisci- plinary Studies at Washington University School of Law, St. Louis, Missouri, March 30, 2001. We would like to thank Barry Friedman for comments and Jay Shuman for research assistance. 1 Deanell Reece Tacha, Independence of the Judiciary for the Third Century, 46 Mer- cer L. Rev. 645, 645 (1995). 2 Am. Bar Ass'n, An Independent Judiciary: Report of the ABA Commission on Sep- aration of Powers and Judicial Independence pt. 2, at 5 (1997), http://www.abanet.org/gov affairs/judiciary/report.html [hereinafter ABA Report]. 962 Imaged with the Permission of N.Y.U. Law Review October 2002] INDEPENDENT JUDGES, DEPENDENT JUDICIARY 963 of judicial independence will agree upon and serve up with perfect sincerity and conviction. Sadly, bromides like these-or maybe these together with a vague notion that independence is supposed to make it possible for judges to decide cases based on "the law" (whatever that means)- pretty much exhaust the areas of agreement. Consensus on broad val- ues combined with discord over their application in particular cases is hardly uncommon, in law or anything else. But the range of disagree- ment when it comes to judicial independence seems unusually wide. We expect controversy over how to draw the line between proper and improper judicial behavior in particular cases, but there is as much uncertainty in locating the line between proper and improper external influences. Indeed, we do not have anything approaching consensus even with respect to the normative conditions necessary to have a properly independent bench. There is disagreement about whether or how to criticize judges and their decisions, and about whether or how to discipline judges. There is disagreement about how to explain or justify our institutional arrangements, and about which of these ar- rangements are constitutional and which are conventional. And, of course, there is pervasive disagreement about whether our judges ex- hibit too much or too little independence. Sorting through the debates on and surrounding judicial indepen- dence is thus a formidable task, but the necessary first steps seem clear enough. We need a workable definition of what we want to ac- complish by making the judiciary independent and an accurate description of the institutional arrangements through which these ends are supposedly accomplished. With a better understanding of how our system of judicial independence actually works, we can begin to explore what, if anything, makes these arrangements stable and to address ticklish normative questions about whether judges have too much or too little independence. In Part I, we consider what independence is meant to accomplish, seeking to clarify some areas of confusion by recharacterizing and so refocusing the inquiry. Most discussions of judicial independence bog down in what commentators view as an irreconcilable tension between independence and democratic accountability. We are told we cannot have it both ways. We can have a bench that is independent or a bench that is accountable, but we must accept a trade-off that sacri- fices one or the other of these goals to some yet to be defined extent. Maybe so, but we will argue that independence and accountability are not the ends about which we need to be concerned. They are means toward a more fundamental goal: the construction of a well-function- Imaged with the Permission of N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW [Vol. 77:962 ing judiciary. That either or both must be sacrificed to a degree sim- ply is not a problem if done in the service of this, our true objective. Because the process of adjudication has this dual concern for in- dependence and accountability, it necessitates a complex institutional design. We mix and match various structural arrangements-some protecting the independence of judges, others making them accounta- ble-in an effort to create a properly balanced judicial system, by which we mean one capable not only of deciding particular disputes in light of their facts, but also of interpreting and even creating law, in- cluding constitutional law. Given the numerous ways in which courts can be regulated and influenced, countless possibilities exist in this regard (as evidenced by the variety of systems used both within the United States and in other nations). What matters is to understand how a particular judicial system balances concerns for independence with concerns for accountability. Only then can one begin to think about whether the system does so in a way that creates a well-func- tioning judiciary. As we explain in Part II, the balance between independence and accountability in the federal system is maintained through a system that protects individual judges from direct outside interference while making the institution in which they work vulnerable to control by the political branches of government. This institutional dependence, in turn, has made the judiciary into a self-regulator, the creator of self- imposed institutional and doctrinal constraints that, as we describe in Part III, keep judges from needlessly stepping on sensitive political toes. The resulting equilibrium is one in which the political branches seldom need to exercise their power or even to threaten doing so. Without, at this point, taking a position on the normative ques- tion of whether our judiciary exercises too much or too little restraint, we believe-and will try to demonstrate below-that the mechanisms operating to cabin federal judges include a variety of judicially created doctrines not usually thought of in connection with judicial indepen- dence. The full panoply of institutionalized forms of judicial restraint is, in fact, broader than most judges and commentators realize. De- spite bold rhetoric about an independent or uncontrollable judiciary actively and aggressively curtailing political decisionmaking, our fed- eral bench is normally a prudent institution, hemmed in on every side by self-created fetters-normally, but not always, as the Supreme Court's recent actions demonstrate. Yet when the Court overreaches, the political branches have the means and the responsibility to remind the Court of its due place in the political system. Such, at least, has been the dynamic that has historically defined constitutional adjudica- tion in the United States. Imaged with the Permission of N.Y.U. Law Review October 2002] INDEPENDENT JUDGES, DEPENDENTJUDICIARY 965 I INDEPENDENCE AND AccouNTABILITY: PROTECrING THE ADJUDICATORY PROCESS In characteristically lighthearted fashion, Judge Alex Kozinski re- cently pondered what judicial independence means. Suppose, he mused, "I decided to show my independence by getting on the bench dressed like Ronald McDonald" or "took it on myself to write all my opinions in law French. That would be independent, right?"13 The very outlandishness of his illustrations served to underscore the unex- pected difficulty of the inquiry, as Judge Kozinski knew they would. What do we mean when we talk about the need for judicial indepen- dence? What are we looking for judges to do, what are we trying to prevent or protect, and why? Commentators have offered a bewildering assortment of answers to such questions, urging the need to protect everything from "deci- sional independence" to what they call "branch independence," "pro- cedural independence," "administrative independence," and even "personal independence."14 Close consideration of the arguments does little to dispel confusion. Everyone agrees that we need "deci- sional independence," meaning judges' ability to adjudicate facts and interpret law in particular cases "free from any outside pressure: per- sonal, economic, or political, including any fear of reprisal."15 Yet eve- ryone also agrees that certain forms of popular or legislative pressure are not only permissible, but indispensable.
Load more

Recommended publications
  • Early Understandings of the "Judicial Power" in Statutory Interpretation
    ARTICLE ALL ABOUT WORDS: EARLY UNDERSTANDINGS OF THE 'JUDICIAL POWER" IN STATUTORY INTERPRETATION, 1776-1806 William N. Eskridge, Jr.* What understandingof the 'judicial Power" would the Founders and their immediate successors possess in regard to statutory interpretation? In this Article, ProfessorEskridge explores the background understandingof the judiciary's role in the interpretationof legislative texts, and answers earlier work by scholars like ProfessorJohn Manning who have suggested that the separation of powers adopted in the U.S. Constitution mandate an interpre- tive methodology similar to today's textualism. Reviewing sources such as English precedents, early state court practices, ratifying debates, and the Marshall Court's practices, Eskridge demonstrates that while early statutory interpretationbegan with the words of the text, it by no means confined its searchfor meaning to the plain text. He concludes that the early practices, especially the methodology ofJohn Marshall,provide a powerful model, not of an anticipatory textualism, but rather of a sophisticated methodology that knit together text, context, purpose, and democratic and constitutionalnorms in the service of carrying out the judiciary's constitutional role. TABLE OF CONTENTS Introduction .................................................... 991 I. Three Nontextualist Powers Assumed by English Judges, 1500-1800 ............................................... 998 A. The Ameliorative Power .............................. 999 B. Suppletive Power (and More on the Ameliorative Pow er) .............................................. 1003 C. Voidance Power ..................................... 1005 II. Statutory Interpretation During the Founding Period, 1776-1791 ............................................... 1009 * John A. Garver Professor ofJurisprudence, Yale Law School. I am indebted toJohn Manning for sharing his thoughts about the founding and consolidating periods; although we interpret the materials differently, I have learned a lot from his research and arguments.
    [Show full text]
  • Two Cheers for Judicial Restraint: Justice White and the Role of the Supreme Court Justice White and the Exercise of Judicial Power
    University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2003 Two Cheers for Judicial Restraint: Justice White and the Role of the Supreme Court Justice White and the Exercise of Judicial Power Dennis J. Hutchinson Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Dennis J. Hutchinson, "Two Cheers for Judicial Restraint: Justice White and the Role of the Supreme Court Justice White and the Exercise of Judicial Power," 74 University of Colorado Law Review 1409 (2003). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. TWO CHEERS FOR JUDICIAL RESTRAINT: JUSTICE WHITE AND THE ROLE OF THE SUPREME COURT DENNIS J. HUTCHINSON* The death of a Supreme Court Justice prompts an account- ing of his legacy. Although Byron R. White was both widely admired and deeply reviled during his thirty-one-year career on the Supreme Court of the United States, his death almost a year ago inspired a remarkable reconciliation among many of his critics, and many sounded an identical theme: Justice White was a model of judicial restraint-the judge who knew his place in the constitutional scheme of things, a jurist who fa- cilitated, and was reluctant to override, the policy judgments made by democratically accountable branches of government. The editorial page of the Washington Post, a frequent critic during his lifetime, made peace post-mortem and celebrated his vision of judicial restraint.' Stuart Taylor, another frequent critic, celebrated White as the "last true believer in judicial re- straint."2 Judge David M.
    [Show full text]
  • Caqe ,T-)65 61
    eiF C714rd FF27JAIKL,ti Ckw.i,ZSI CAqE ,t-)65_61,. ;bo'7qra TAE C3h11© I-SuPRLrnE COi.I fF,a,qRh aF- CoFnmi SSiWER.SI 1N fvE: LE VEF2T K. PdE3221't2^. AKC^N.d^l ^f^r's^'L., t.^SES. A- LLCyt:LSTiN P. oSUEL^Sa7.ReGA(a.OGi 115% 511 M.MArN ST ./LMZc^ni.e^l1 4431U< .4AOa.... pE^,' 0 6 Z006 LAWREIJGE R. Sin^TiJ.FS©.,REG.NO.a©2902Es1 ONE CflSCA6E PLZ.. 7t1(.FL..AKR-dN.ON 44 3ej8, MARCIA J NIENGEL, CLERI( AEFTS.,APLEES..RES.... SUPREME CUF;! OF ILELATQiZ.AP('ELLAnfT, PLAu.ITiF'F LEVErc'l` K,C►RIPFrn! MOi IGaI FdR r-N7RY FdOR ALLEGE LdA1rQI.ITN6kI ZE P'cAcT 1 CE aF LAW L6t^^EN AGAwsT ZnTF1 A'T'f'oRAfEYs Lf1ldYER lA1LAPTlOAIEN As AL3ouE SEE NEraLE EXNIL3rT#'^"^4 "C° &IbuS CvMES,RELATafZ.ArPELLqM.PLAinitrFF LEUERT nc.6RIF'FiN.NE(mF3Y PRRY PbfZ RELIEF LLPOni'Ta WlliG.N RELIER CAnr BE GPtAn[TEd. A.rnaTrer.t FrafR Eti1TRY FoR ALLEGE dnrr4uTW0rtraE PreACTrcE aF LAru IoOisEO Afvr^,E6-ra ArTaRuEYs LAwyER. ^nsCA.PTranrE& AS AbevsE_ .SEC r(s,ucE cxAI PEr.li,rmL. L>APPE.FlL As QF R1a13T z^TRFanI Smi?R'Fa L eF RS.Car'.h LEVESZ~1 SOaw Cl-,..uSE- dRDE2 FOp^ REL)Ar11b, MmANf]E& TA)C f'fLEE AT ALL COS*P `TAlS RZEqmCLE5r wER Ciau F3AR rL, U rs 6lFl, PEnrtvAjG AISTddtC A7rVE REL/EF C,u P. RL. 55(a1^6) t*'s4,uERN WJLUE' 7)IE Au7'F1.. SctP CT RL. P"h.'00 , iti{E rgAl2cFoAln RL,$L.LIh^A^t^^JGR^ZEb PrZALT^CECK LAC^/.
    [Show full text]
  • AP Government: Due Process & Roe V. Wade
    Social Studies Virtual Learning AP Government: Due Process & Roe v. Wade April 13, 2020 AP Government Lesson: April 13, 2020 Objective: LOR 3.B Explain the extent which states are limited by the due process clause from infringing upon individual rights. Warm Up: Write down your answer the following question. There are no right or wrongs here, but this is the focus of the lesson today! What is the right to privacy? What are 3 aspects of everyday life that it includes? Lesson: Roe v. Wade As this is a required case for the test, there are some ideas that are important to remember. Please write these down in your own words so you know what they are. Term Definition Due process The 14th Amendment clause guaranteeing that no state clause shall “deprive any person of life, liberty, or property, without due process of law.” The Supreme Court has interpreted the due process clause to provide for “selective incorporation” of amendments into the states, meaning that neither the states nor the federal government may abridge individual rights protected by the Constitution. Term Definition “Penumbra Derived from the Latin for “partial shadow.” The Supreme of privacy” Court has ruled that several amendments in the Bill of Rights cast a “penumbra” of the right to privacy, although the right to privacy itself is never explicitly named. For example, the Court has interpreted that the 4th Amendment right of the people to be secure in their houses from unreasonable searches and seizures implies a right to privacy in the home. Right to The right to be “left alone,” or to be free of government privacy scrutiny into one’s private beliefs and behavior.
    [Show full text]
  • Advisory Opinions and the Problem of Legal Authority
    Vanderbilt Law Review Volume 74 Issue 3 April 2021 Article 5 4-2021 Advisory Opinions and the Problem of Legal Authority Christian R. Burset Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Judges Commons, and the Jurisprudence Commons Recommended Citation Christian R. Burset, Advisory Opinions and the Problem of Legal Authority, 74 Vanderbilt Law Review 621 (2021) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol74/iss3/5 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Advisory Opinions and the Problem of Legal Authority Christian R. Burset* The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we have misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions. This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not only in the United States but also in England and British India— became opposed to advisory opinions in the second half of the eighteenth century. The death of advisory opinions was a global phenomenon, rooted in a period of anxiety about common-law authority.
    [Show full text]
  • Not the King's Bench Edward A
    University of Minnesota Law School Scholarship Repository Constitutional Commentary 2003 Not the King's Bench Edward A. Hartnett Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Hartnett, Edward A., "Not the King's Bench" (2003). Constitutional Commentary. 303. https://scholarship.law.umn.edu/concomm/303 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. NOT THE KING'S BENCH Edward A. Hartnett* Speaking at a public birthday party for an icon, even if the honoree is one or two hundred years old, can be a surprisingly tricky business. Short of turning the party into a roast, it seems rude to criticize the birthday boy too harshly. On the other hand, it is at least as important to avoid unwarranted and exaggerated praise.1 The difficult task, then, is to try to say something re­ motely new or interesting while navigating that strait. The conference organizers did make it easier for me in one respect: My assignment does not involve those ideas for which Marbury is invoked as an icon. It is for others to wrestle in well­ worn trenches with exalted arguments about judicial review and its overgrown descendent judicial supremacy, while trying to avoid unseemly criticism or fawning praise. I, on the other hand, am to address more technical issues involving section 13 of the Judiciary Act of 1789 and its provision granting the Supreme Court the power to issue writs of mandamus.
    [Show full text]
  • The Role of Politics in Districting the Federal Circuit System
    PUSHING BOUNDARIES: THE ROLE OF POLITICS IN DISTRICTING THE FEDERAL CIRCUIT SYSTEM Philip S. Bonforte† I. Introduction ........................................................................... 30 II. Background ............................................................................ 31 A. Judiciary Act of 1789 ......................................................... 31 B. The Midnight Judges Act ................................................... 33 C. Judiciary Act of 1802 ......................................................... 34 D. Judiciary Act of 1807 ....................................................... 344 E. Judiciary Act of 1837 ....................................................... 355 F. Tenth Circuit Act ................................................................ 37 G. Judicial Circuits Act ........................................................... 39 H. Tenth Circuit Act of 1929 .................................................. 40 I. Fifth Circuit Court of Appeals Reorganization Act of 1980 ...................................................... 42 J. The Ninth Circuit Dilemma ................................................ 44 III. The Role of Politics in Circuit Districting ............................. 47 A. The Presence of Politics ..................................................... 48 B. Political Correctness .......................................................... 50 IV. Conclusion ............................................................................. 52 † The author is a judicial clerk
    [Show full text]
  • The Normative Cycle of Shaping Judicial Independence in Domestic
    Chicago Journal of International Law Volume 10 Number 1 Article 13 6-1-2009 The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges Shimon Shetreet Follow this and additional works at: https://chicagounbound.uchicago.edu/cjil Recommended Citation Shetreet, Shimon (2009) "The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges," Chicago Journal of International Law: Vol. 10: No. 1, Article 13. Available at: https://chicagounbound.uchicago.edu/cjil/vol10/iss1/13 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in Chicago Journal of International Law by an authorized editor of Chicago Unbound. For more information, please contact [email protected]. The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges Shimon Shetreet* I. INTRODUCTION The creation of the culture of judicial independence has been a combined process of national and international developments. The process consists of a cycle of normative and conceptual impact of national law on international law and later, of international law on national law. In the cycle's first phase, which began in 1701 with England's enactment of the Act of Settlement,' judicial independence was conceived domestically. In the second phase, which began shortly thereafter, this domestic development crossed national boundaries and impacted the thinking of scholars and political leaders in the international community.
    [Show full text]
  • The United States Supreme Court and National State Expansion, 1789- 1997
    THE UNITED STATES SUPREME COURT AND NATIONAL STATE EXPANSION, 1789- 1997 A Dissertation Presented to the Faculty of the Graduate School of Cornell University in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy by Michael Anthony Dichio August 2014 © 2014 Michael Anthony Dichio THE UNITED STATES SUPREME COURT AND NATIONAL STATE EXPANSION, 1789- 1997 Michael A. Dichio, Ph.D. Cornell University 2014 This dissertation examines the Supreme Court’s impact on the constitutional development of the federal government. By applying a central state authority framework to an original database of hundreds of Supreme Court decisions, I uncover the ways in which the Court has constitutionally expanded and restricted the powers of the federal government from 1789 to 1997. I code each decision’s overall effect on central state authority as either restrictive, neutral, or expansion as well as code decisions along seven different dimensions of the federal government according to the central state authority framework. These constitutional decisions were gathered from fifty-eight constitutional law casebooks and treatises published between 1822 and 2010, and the decisions that repeated most frequently across these books were included into the dataset for analysis. After this systematic and empirical analysis of the decisions, it becomes clear that the Supreme Court has persistently constricted and expanded the national government, but, at the same time, its decisions have always leaned toward supporting and developing the national government’s powers across each constitutional issue area. Thus, this dissertation speaks to scholarship that not only reconsiders nineteenth century national state power but also underscores the important role that judges play in advancing national state development.
    [Show full text]
  • Chapter 2 the Marshall Court and the Early Republic
    Chapter 2 The Marshall Court and the Early Republic I. The Supreme Court in Its Initial Years: 1 78918O11 The Supreme Court of the United States was a relatively insignificant institution during the first decade of the new Republic. Presidents Washington and Adams had some difficulty attracting people to serve, and the rate of turnover was high. Three men were appointed chiefjustice during the first 12 years.JohnJay resigned after six years to serve as New York’s governor, which he presumably deemed the more important office (and during his tenure he sailed to England to serve as the princi pal negotiator of what became known as the Jay Treaty with Great Britain, which, together with his co-authorship of the Federalist Papers, remains his primary claim to fame for most historians) . His successor, John Rutledge, had been appointed as an Associate in 1 789 but had resigned in 1 791 , without ever sitting, to go to the more prestigious South Carolina Supreme Court. He was nominated to become Chief Justice ofthe U.S. Supreme Court in 1795 but failed to receive Senate confirmation. Thereafter, Oliver Ellsworth was nominated and confirmed in 1796; he served until 1800, when he resigned while overseas on a diplomatic mission to France. One source of discontent was the onerous duty of “riding circuit,” which required eachJustice to travel twice a year to sit in the federal circuit court districts. (There were no “circuit courts” in the modern sense; instead, they consisted of districtjudges sitting together with a Supreme Courtjustice as a “circuit court.”) The trips were strenuous and time-consuming.
    [Show full text]
  • Stare Decisis and Judicial Restraint Lewis F
    Washington and Lee Law Review Volume 47 | Issue 2 Article 2 Spring 3-1-1990 Stare Decisis And Judicial Restraint Lewis F. Powell, Jr. Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Jurisprudence Commons Recommended Citation Lewis F. Powell, Jr., Stare Decisis And Judicial Restraint, 47 Wash. & Lee L. Rev. 281 (1990), https://scholarlycommons.law.wlu.edu/wlulr/vol47/iss2/2 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. WASHINGTON AND LEE LAW REVIEW Volume 47 Spring 1990 Number 2 STARE DECISIS AND JUDICIAL RESTRAINT REmAS oF LEWIS F. POWELL, JR.* AssocATE JUsTicE (RETIRED) SUPREME COURT OF THE UNITED STATES It is a privilege to give the inaugural Leslie H. Arps Lecture. I knew Les fairly well as a young lawyer with Root, Clark, Buckner and Ballantine in the 1930's. Les became an associate for that firm in 1931 upon his graduation from the Harvard Law School. I took an LL.M. degree at the Law School in 1932 and had a number of friends among the third year students, including two who joined Les at Root, Clark on graduation- Everett Willis and Frank Dewey. Everett and Frank shared an apartment with Les in 1934, and when Frank married my sister Eleanor in Richmond, Virginia, in August 1934, Les and Everett were ushers at the wedding.
    [Show full text]
  • The Increasing Importance of Ideology in the Nomination and Confirmation of Supreme Court Justices
    Epstein 8.0 5/12/2008 8:01 AM THE INCREASING IMPORTANCE OF IDEOLOGY IN THE NOMINATION AND CONFIRMATION OF SUPREME COURT JUSTICES Lee Epstein,* Jeffrey A. Segal** & Chad Westerland*** TABLE OF CONTENTS I. Introduction ........................................................................................... 609 II. Ideology and Presidents ....................................................................... 610 A. Measurement Issues ....................................................................... 616 B. Results .............................................................................................. 619 III. Ideology and Senators .......................................................................... 620 A. Measurement Issues ....................................................................... 622 B. Results .............................................................................................. 627 IV. Rational Anticipation in the Appointments Process ........................ 631 I. INTRODUCTION Among the central questions raised in this Article is how the personal beliefs of federal judges and Justices affect the nomination and confirmation processes. If we define “personal beliefs” in strictly ideological terms and if we focus exclusively on Supreme Court Justices, * Beatrice Kuhn Professor of Law and Professor of Political Science, Northwestern University; B.A., Emory University; M.A., Emory University; Ph.D, Emory University. For research support, we are grateful to the National Science Foundation and the
    [Show full text]