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The unitary executive and the plural judiciary: on the potential virtues of decentralized judicial power.


The federal judiciary features a highly decentralized system of courts. The Supreme Court of the United States reviews only a few dozen cases each year. Meanwhile, regional U.S. courts of appeals operate independently of each other; district courts further divide and separate the exercise of federal judicial power. The role of the state courts in enforcing federal law further subdivides responsibility for the adjudication of federal law claims. Indeed, the Office of Chief Justice itself incorporates and reflects this vesting of the judicial power of the United States exclusively in collegial institutions--literally in a multiplicity of hands--effectively precluding its unilateral or precipitate exercise by a single person. The standard narrative posits that the radically decentralized nature of federal judicial power is a vice, rather than a virtue, because it renders federal law, including constitutional law, non-uniform based solely on the accident of geography.

This Article challenges the received wisdom, contending that the radical division of judicial authority makes perfect sense. Consensus among the disparate federal courts serves as a highly valuable means of legitimating the exercise of judicial review (notwithstanding the lack of a democratic mandate). The creation and maintenance of a highly decentralized system of federal and state courts exists by design, not accident. Greater centralization of judicial power easily could be achieved, yet we should think twice before abandoning our present system precisely because decentralized judicial deliberation improves and enhances the process of resolving difficult questions of fundamental importance. We should not reflexively accede to the suzerainty of uniformity as the paramount value in judicial decision making; instead, we must carefully consider the potential benefits associated with decentralizing judicial power by denying any one person--or juridical body--the exclusive power to exercise "[t]he judicial Power of the United States."


In many contexts and all too often, the familiar escapes careful or thoughtful consideration. Precisely because it is familiar, we unconsciously assume it to be fixed and unchangeable; indeed, we come simply to accept it as a background condition. This general principle holds true with respect to both law and legal institutions. For example, few reasonable people would agree to create a legislative body in which California, with over 30 million citizens, enjoys the same representation and voting power as Wyoming or North Dakota, which each have less than a million residents. (1) As Professor Sanford Levinson observes, "[t]he equal-vote rule in the Senate makes an absolute shambles of the idea that in the United States the majority of the people rule[s]." (2) Yet, path dependence seems to insulate this institution from sustained public criticism as radically undemocratic; most people in the contemporary United States simply accept the equal representation of the states in the Senate. Thus, an historical anomaly associated with the Connecticut Compromise goes largely unchallenged. (3)

In a similar vein, relatively little sustained attention has been devoted to the institutional structure of the federal courts. (4) The institution includes the Supreme Court of the United States, U.S. courts of appeals, and U.S. district courts. Moreover, the state judiciaries also should be included on any flow chart of the exercise of judicial power over federal questions given that these courts also routinely hear and decide important questions of federal law. Despite the central importance of institutional structure to the exercise of "[t]he judicial Power of the United States," we tend not to think very much-or very carefully--about either the structure of the federal courts or the Office of Chief Justice.

We ought to pay closer attention to this very familiar office and also to the broader question of the institutional structure of the federal judiciary itself. The two questions, although severable, are entwined. The design of the Office of Chief Justice arguably has a metonymous relationship to the structure of federal judiciary more generally.

Consider the Office of Chief Justice of the United States, and the utter lack of specific, constitutionally conveyed, institutional powers associated with it. Indeed, the Constitution does not even bother to formally create the office; no specific reference to the Office of Chief Justice exists in Article III. (5) To be sure, the Constitution does contain a single reference to the Chief Justice--in Article I, Section 3, Clause 6. (6) Otherwise, however, the office and its institutional powers are left entirely to the discretion of Congress and the Supreme Court itself to determine. Thus, upon closer examination of the institutional role of the Chief Justice, one is immediately struck by the relative insignificance of the office--both with respect to the Constitution's text, but also with respect to the office's powers within the Supreme Court and the federal judiciary more generally.

It is tempting to line up the Chief Justice with the President, the Speaker of the House, and the Majority Leader of the Senate. After all, the Chief Justice of the United States is the titular head of the judicial branch of government created by Article III of the Constitution. (7) Yet, this assumption of material equivalence, upon sustained reflection, proves to be false. Unlike the heads of the executive and legislative branches of the federal government, the Chief Justice possesses absolutely no unilateral authority to oversee and direct the operations of either the Supreme Court or the inferior federal courts (much less the state judiciaries, which also play an important and ongoing role in the enforcement of the Constitution, treaties, and laws of the United States). (8) In fact, whatever powers the Chief Justice enjoys rest almost entirely on internal rules and practices of the Supreme Court itself (which five members of the nine member body could presumably abolish or amend at will) and on specific statutes that vest authority with the Chief Justice, such as the Rules Enabling Act, (9) which permits the Chief Justice, in conjunction with his duties as head of the Judicial Conference of the United States, to appoint members to the various advisory committees charged with reviewing and updating the federal rules of evidence, criminal procedure, civil procedure, and bankruptcy. (10)

This lack of centralized power is replicated in the broader organizational structure of the federal court system. Indeed, if one were to step back and consider the federal judiciary in more general terms, the most obvious structural characteristic is the almost complete decentralization of power. In fact, any federal judge, even the Chief Justice, has to obtain the agreement and consent of other federal judges to do virtually anything of consequence. The structure of the lower federal courts also enhances, rather than reduces, the requirement of collective, rather than individual, action.

After reflecting upon the Office of Chief Justice and the structure of the federal courts more generally, it is striking that the Framers--and Congress--have created in the federal courts something of a photographic negative image of the executive branch. (11) The Constitution expressly vests the President with broad authority to personally direct and oversee the operations of the executive branch of the federal government, (12) whereas the Constitution is entirely mute with respect to the institutional power and authority of the Office of Chief Justice, vesting all judicial powers in a group of decentralized, collegial institutions. To state the matter simply: we have a unitary executive and a plural judiciary. (13)

What's more, the radical decentralization of the federal court system is further enhanced by the non-uniform rules of operating procedure in force within federal circuit and district courts. (14) For example, in some U.S. courts of appeals, draft panel decisions circulate to the entire court's membership, whereas in others, panels issue opinions autonomously and without prior circulation to other chambers (save in special circumstances, such as when a panel proposes limiting or overruling a prior precedent of the circuit). (15) In other words, the operating rules and procedures governing the exercise of the judicial power of the United States vary from circuit to circuit. (16) Thus, not only is decisional authority separated and widely dispersed, but the procedures associated with the exercise of this authority are non-uniform, making the decisional process itself different among the federal courts.

In sum, independent courts exercise judicial authority using different rules of the road; the multiplicity of decision makers is further augmented by a multiplicity of operating procedures. The balance of this Article will develop these themes, first by considering the text of the Constitution itself, as it bears upon the structure and operation of the federal courts, and then by considering how other, non-constitutional rules and practices have the effect of dividing and limiting an individual judge's power within the Article III courts.

My thesis is that the decentralization of the judicial power of the United States, coupled with the different local operating rules in force within the U.S. courts of appeals, district courts, and state court systems, constitute a virtue rather than a vice. By making the decisional process on important, but difficult, questions of constitutional law a collective endeavor, placed in entirely separate hands, operating largely independently of each other, the risk of insufficiently considered--reasoned--decision making is substantially reduced (as are some of the risks of collective, collegial decision making, such as so-called "group think"). (17) When disparate and independent courts ask and answer the same question and render the same answer, the legitimacy of that answer is greatly enhanced. Moreover, the popular legitimacy of a judicial act displacing the act of a democratically elected and accountable legislative body or executive officer is surely improved and enhanced when different decision makers, operating independently of each other, reach a common conclusion (whether or not on the same premises or reasoning). (18) Research also shows that diverse groups, generally speaking, are less likely to polarize toward more extreme positions than individuals. (19) Of course, the reverse should also hold true: just as judicial consensus enhances the legitimacy of a particular result, judicial dissensus logically implies that the politically accountable branches of government should enjoy a broader residual authority to act free and clear of judicial superintendence.

The argument proceeds in four principal parts. Part I begins by considering the implications of the Constitution's text for both the Office of Chief Justice and the federal courts, with particular attention to the differences in the respective Vesting Clauses of Articles I, II, and III, which provide important evidence supporting the thesis that the Framers intended for federal judicial power to be widely dispersed and incapable of unilateral exercise by any single federal or state court judge (up to and including the Chief Justice of the United States). (20) Part I then analyzes how the decentralized vesting of judicial power of the United States profoundly affects its exercise and contrasts the diffuse nature of federal judicial power with the far more concentrated executive and legislative powers. (21) Part I concludes by considering the relevance of Federalist political theory, which appears to have animated Congress's initial decision, in the Judiciary Act of 1789, to create local federal courts exercising independent authority. (22)

Part II examines the potential benefits and risks associated with a multiplicity of deciders and collegial decision making, in lieu of a single decider. (23) Part III takes up various mechanisms that the Supreme Court, Congress, or both could theoretically adopt to centralize the exercise of the judicial power of the United States. Part III concludes that myriad constitutionally permissible means exist to streamline and consolidate the exercise of judicial authority within the federal courts and, accordingly, posits that the failure of the Supreme Court or Congress to embrace these means provides further important evidence that the contemporary structure of the federal and state courts reflects an intentional embrace of multiplicity and diversity, rather than a mere historical accident. (24)

Part IV considers the potential relevance of the law and psychology literature on the dynamics of group decision making. (25) Although the evidence is somewhat mixed, this literature generally provides support for the proposition that decentralized, separate, and independent decision makers, operating independently of each other, will usually do a better job of considering diverse, alternative viewpoints than would a single deliberative body operating in real time, with its members sitting around the same table. Finally, the Article concludes by arguing that contrary to the received wisdom and standard narrative, the decentralized nature of the federal judiciary arguably constitutes a strength, rather than a weakness, of the Article III courts.

In a political system in which contesting and winning elections is the key to legitimating decision making, federal judges and the federal judiciary as a whole require an alternative means of establishing the bona fides of their work. Creating a system that enhances and replicates the process of deliberation and reason-giving arguably constitutes an effective substitute for seeking and winning elections. Moreover, and perhaps of equal importance, the deliberative process consumes time, which also permits the once "unthinkable" (desegregation of public institutions, equal rights for women without regard to sex, same-sex marriage) to become the quotidian, thereby reducing the potential risk of the political branches rejecting the federal court's answer to a particular constitutional question. (26) In sum, decentralized decisional authority, within the Supreme Court and more generally, enhances the ability of the federal courts to make their decisions stick. We should therefore think very carefully before embracing speed, efficiency, and uniformity as the paramount virtues to be sought in a judicial system charged with safeguarding the nation's most fundamental human rights commitments.


This Part considers in some detail the source of federal judicial power and the roots of its highly decentralized structure. The Constitution itself diffuses judicial power and subsequent congressional enactments have extended a model of independent, regional courts operating independently of each other. These materials demonstrate that the uniformity of federal law has never been a controlling consideration in the design or operation of the federal courts. Moreover, Federalist political theory embraced the use of the federal courts as the local face of the federal government within the states, quite literally linking the people of the states to the union through these local judicial institutions.

This Part begins by considering how the Constitution itself wildly disperses judicial power--by design rather than by accident--with particular attention to the striking contrast between the Article III judiciary and the Article II executive branch. It then proceeds by examining the practical consequences that flow from the Constitution's creation of a decentralized judicial branch. The Part concludes by analyzing the relevance of Federalist political theory to understanding and theorizing our decentralized federal judiciary.

A. The Constitution, the Judiciary, and the Executive Branch

Although one may quibble with the utility of textual analysis as a starting point in constitutional analysis, (27) when attempting to understand the Framers' structural intentions--independent of how particular offices have changed and evolved over time through practice and tradition (28)--the text is a logical place to start. And, in considering the Office of Chief Justice and the structure of the federal judiciary more generally, the text provides some important evidence about both the nature of the office and also of the federal judiciary itself.

Consider first the Vesting Clauses of Article II and Article III. With respect to the executive power, the Constitution provides that "[t]he executive Power shall be vested in a President of the United States of America." (29) As Justice Scalia so famously thundered in Morrison v. Olson, "this does not mean some of the executive power, but all of the executive power." (30) Although the Supreme Court has accepted limitations on the power of the President to remove executive branch personnel, the Justices have insisted that the President enjoy some ability to oversee and control the operations of the executive branch, even in the context of so-called independent agencies. (31) For example, in Free Enterprise Fund, (32) the Supreme Court found that a two-tiered system of "good cause" removal violated the separation of powers by unduly insulating the members of the Public Corporation Accounting Oversight Board from presidential control. (33) Given the clear and express language of Article II, Section 1, "most" simply is not good enough for government work. (34)

As Alexander Hamilton explains in Federalist No. 70, the Framers' purpose in vesting the whole executive power in a single national executive officer was to create a "vigorous executive" imbued with sufficient "energy," (35) which Hamilton defines as "unity; duration; an adequate provision for its support; and competent powers." (36) He explains:
 Energy in the executive is a leading character in the definition of
 good government. It is essential to the protection of the community
 against foreign attacks; it is not less essential to the steady
 administration of the laws; to the protection of property against
 those irregular and high-handed combinations which sometimes
 interrupt the ordinary course of justice; to the security of
 liberty against the enterprises and assaults of ambition, of
 faction, and of anarchy. (37)

Moreover, "[d]ecision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished." (38) Professor Peter Strauss quite rightly argues that "[o]f the decisions clearly taken, perhaps none was as important as the judgment to vest the executive power in a single, elected official, the President." (39)

Now, contrast this vesting of responsibility over the executive branch of the federal government in the office of the President with the corresponding provision of Article III: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." (40) The differences with Article II's Vesting Clause could not be more striking; the Framers vested judicial power not in an individual (the Chief Justice), but rather in an institution (the federal judiciary, including but not limited to the Supreme Court). In fact, as noted earlier, the Office of Chief Justice does not even merit a direct textual reference in Article III--literally, there is no express constitutional requirement that the Office of Chief Justice even exist.

To be sure, the Constitution does contain an indirect reference to the Office of Chief Justice: "When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present." (41) Thus, the Framers plainly presupposed that there would be an Office of Chief Justice, although Article III itself only adverts to a collective institution, namely, "one supreme Court." (42) In this respect, the Office of Chief Justice stands on the same constitutional ground as the cabinet departments, although the Constitution manages two references to these institutions, as opposed to the single reference to the Office of Chief Justice. (43)

In contrast with the President, the unitary repository of "the executive Power" of the United States, the Chief Justice plainly enjoys only some part of the entire judicial power of the United States, which he or she must share with the other members of the Supreme Court, with the inferior federal courts (should Congress exercise its discretion to create them), and with the state courts (which, had Congress elected not to create lower federal courts, would adjudicate federal claims in the first instance and also likely decide initial appeals).

In other words, rather than creating a concentration of judicial authority in a single office, held by a single person, Article III disperses and divides judicial authority, both within the highest federal judicial tribunal, the Supreme Court, and also within the lower federal courts. (44) And, depending on how broadly one interprets the Exceptions and Regulations Clause, this power could be held in multiple courts with no single authority enjoying jurisdiction to resolve conflicts among them, including conflicts about the meaning of the Constitution itself. (45)

B. Federal Judicial Power Is Widely Dispersed and Can Be Exercised Only Through Collective Action

The contemporary dispersion of power within the federal judiciary extends even beyond the Constitution's textual requirements. Congress has structured the lower federal courts in such a way that further separates and divides judicial power, for example, by dividing the federal appellate courts into separate judicial circuits, with dozens of distinct federal trial courts operating within these independent appellate courts. (46) Professor Wayne Logan notes that "from the outset, creation of an intermediate tier of federal appellate courts prompted worry, including from the bill's sponsor, New York Senator William Evarts, that 'diverse tribunals in geographical distribution' would sow confusion in 'all that we had secured heretofore by a uniformity of conclusions.'" (47)

Of course, this latent concern did not lead Congress to adopt any measures designed to ensure the uniformity of federal law across the circuits. Moreover, the prior system vested substantial responsibility for the enforcement and development of federal law in the district courts and also was, until 1869 when Congress first created dedicated federal appellate judgeships, (48) entirely dependent on the ability of a handful of judges (incumbent Justices of the Supreme Court) to perform the task of appellate review for error correction at both the intermediate and final appellate levels. Limits on the ability of the federal courts to review state law decisions that upheld, rather than rejected, federal law claims--a rule that existed until 1914--also ensured that federal law would be non-uniform. (49) Finally, the proscription against federal courts offering advisory opinions, (50) given the ability of many state courts to do so, opining even on issues of federal constitutional law, also generates non-uniform interpretations of federal law that cannot be easily corrected by the Supreme Court.

The traditions and practices of the federal courts also tend to promote the diffusion, rather than the concentration, of judicial power and decisional authority within the federal bench. (51) For example, the rule that a U.S. court of appeals is not bound by precedents of its sister circuits creates the certainty of non-uniform interpretations of federal law. (52) One could imagine a contrary rule: i.e., the first U.S. court of appeals to rule on a legal question establishes a baseline rule that binds either all other circuits or at least all other district courts (pending a conflicting decision within the district court's own circuit). (53) So too, within a district court, the decision of a single federal district judge has no precedential effect within that court--or even within that judge's own courtroom. Accordingly, conflicting decisions can and will issue from the very same subunit of the federal trial courts. (54) The cumulative effects of these rules, and the structure of the federal courts themselves, is to render it virtually impossible for a single judge to exercise personally the judicial power of the United States. Rather, the judicial power of the United States will almost always be exercised collectively and collegially.

Returning to the Office of Chief Justice, the Chief Justice has remarkably few supervisory powers over either his colleagues at the Supreme Court or the judges of the lower federal courts. Again, the constitutional baseline defines neither the office nor its powers. Nevertheless, constitutional common law or statute could have enhanced the powers of the office, much as the Senate, by rule and custom, has created the position of Majority Leader and vested this position with substantial control over the flow of legislative business in the Senate.

Although the Constitution itself creates the office of Speaker of the House, (55) it does not address the scope of the Speaker's powers within the chamber. Over time and by both rule and custom, however, the Speaker of the House has consolidated a great degree of control over the business of the House of Representatives, including near absolute control over the floor of the House through discretionary appointments to the House Rules Committee. (56)

Thus, even though both houses of Congress are plainly collective entities that require majority support to act as institutions, within both bodies offices exist that consolidate power and afford the holder of that power an effective veto over collective consideration of legislation. By way of contrast, even within the Supreme Court itself, the Chief Justice has but a single vote on the question of whether to grant a writ of certiorari in a particular case, and also but a single vote with respect to the disposition of cases. Unlike the Speaker or the Majority Leader, the Chief Justice exercises very little substantive control over the work of the Supreme Court itself, to say nothing of the work of the lower federal courts or state courts.

For example, if the Chief Justice believes a decision by a panel of a court of appeals to be mistaken, he has no means of securing either Supreme Court or en banc court of appeals review of that decision. And, even if he were to act as Circuit Justice in a given case, perhaps issuing a stay, any decision he made when acting in that capacity could be overridden by a simple majority vote of the Supreme Court's whole membership.

Even on questions of administration within the Supreme Court, the Chief Justice acts only by custom and with the ongoing consent of a majority of his colleagues. (57) Thus, for example, the Chief Justice could not definitively and unilaterally set a policy on cameras in the Supreme Court for oral arguments, or a revised policy on the release of audio recordings of oral arguments. (58) The Supreme Court, to a much higher degree than either the House of Representatives or the Senate, is a collegial body and requires consensus to act. (59)

In circumstances involving credible allegations of judicial misconduct, the Chief Justice lacks any unilateral power to act to remove a corrupt or incompetent judge from judicial service. Instead, such power, by statute, rests in the hands of the various U.S. courts of appeals' judicial councils. (60) A judicial council has the power to limit or remove a lower federal court judge's judicial caseload--but not the power formally to suspend a judge from office or to cease the judge's federal pay (both of which would require either voluntary resignation or impeachment by Congress). The Chief Justice has no direct power to suspend or remove a federal judge (whether on the Supreme Court or a lower federal court), nor does the Constitution itself require that any such power be vested in the person holding this office.

In the end, then, the text of the Constitution and the structure and operation of both the Supreme Court and the lower federal courts reduce the Chief Justice to little more than a first among equals. (61) As Professor Theodore Ruger explains, "[t]he Chief Justice's adjudicative power is structured and channeled in ways very much like the other eight Justices on the Court, and, in a more general sense, is much like the authority of any judge on a multimember appellate tribunal." (62)

To be sure, the Chief Justice does enjoy responsibility for making some appointments to various committees and special courts, and also has administrative oversight responsibilities for the Judicial Conference of the United States. Nevertheless, if one contrasts the powers and perquisites of the office against those of the President, Speaker, or Majority Leader, the real structural weakness of the position comes into very clear focus. Simply put, the Chief Justice lacks the power to command his colleagues; instead, he must persuade them. The power of his office depends, in a very real way, on his ability to convince his colleagues, both in the Supreme Court and on the lower federal courts, of the wisdom of his views. (63)

C. Federalist Political Theory and the Federal Courts as Local Institutions

The decentralization of the federal courts is rooted in structural decisions initially made in the early years of the Republic. Under the Judiciary Act of 1789, Congress established federal district courts that corresponded to the existing states. (64) "With the Judiciary Act of 1789, signed on September 24, 1789], it created 13 district courts, three circuit courts and a six-member Supreme Court (with two justices drawn from each circuit)." (65) In other words, Congress designed the lower federal courts to be local institutions within the states--indeed, quite possibly the only federal institution located within a particular state (save, perhaps, for military installations, such as forts or naval bases).

Consider too that members of the preeminent national federal court, the Supreme Court of the United States, for many years (66) labored under a statutory duty to hear and decide cases while "riding circuit," meaning that members of the Supreme Court had an obligation to visit regularly parts of the United States outside the national capital city (first, in New York City, then, in Philadelphia, and finally, in Washington, D.C.). (67) In section 5 of the Judiciary Act of 1789, Congress specified the cities and times at which the circuit courts would sit, thereby requiring, by statute, that the circuit courts, like the district courts, maintain a consistent local presence within the states. (68) Thus, unlike Congress or the President, the official duties of the Chief Justice and Associate Justices required them to regularly conduct their official functions in the states, rather than in the national capital. (69) Although members of the House and Senate were elected from the states, their official service took place almost exclusively in the national capital city.

As Professor Alison LaCroix has observed, Chief Justice John Marshall and Associate Justice Joseph Story were "deeply committed to the belief that the inferior federal courts were and ought to be the principal physical embodiment of the national government, reaching into the otherwise highly localized space of the cities, towns, and countryside of the United States." (70) Indeed, she argues that "Marshall and his colleagues believed that the inferior federal courts--not Congress--were the most important symbolic and institutional nodes by which the people of the nation would encounter the authority of the general government." (71)

The federal courts, from 1789 to the present, were designed to be local institutions that connect the people of the states to the federal government. Not only are the district and circuit courts physically present in each and every state, but these institutions are also staffed by judges drawn from local bar associations. The design of the federal courts, coupled with longstanding traditions regarding the allocation of seats on the U.S. courts of appeals to particular states, has the effect of creating a highly diverse group of decision makers quite literally drawn from the whole nation. The federal courts are both local, in a literal sense, but are also "local" in a more metaphorical sense insofar as they are staffed with persons drawn from the local community.

In some instances, the regional nature of the lower federal courts can make the enforcement of locally unpopular federal rights more difficult, as was the case in some communities during the civil rights movement. (72) On the other hand, however, the fact that local judges enforce federal constitutional rules has the effect of rendering the decision one from a representative of the community, rather than an outsider. When John Minor Wisdom (73) or Frank M. Johnson, Jr. (74) issued important rulings in landmark civil rights cases, they were acting on behalf of the federal courts, but were still both very much members of the New Orleans and Montgomery communities. (75) The service of members of the local state bar on federal courts almost certainly helps to enhance the prospects for local compliance with federal court rulings.

It is not surprising, then, that "[e]xpanding federal judicial power to the inferior federal courts ... had long been a crucial element of the Federalists' project of ensuring national supremacy through the institution of the judiciary." (76) Professor LaCroix explains that "Marshall's and Story's commitment to building the power of the inferior federal courts therefore stemmed from their deeply held belief that the 'judicial [P]ower of the United States' described in Article III of the Constitution represented the chief bulwark against the wayward, localist tendencies of the states." (77) Marshall and Story possessed "an almost metaphysical belief in the federal judicial power as at once proceeding outward from the center and connecting the peripheries back to the center, thereby countering the omnipresent threat that the federal republic would revert to a confederation." (78) Thus, "Marshall and his colleagues insisted that the inferior federal courts were a crucial locus of federal power precisely because they were present in the town square and therefore created a practical, physical connection between the central government and the local polity." (79) In sum, they "viewed union as the mandate of the Constitution, and federal courts as the guardians of union." (80)

For the lower federal courts to play this crucial role, however, they would have to be decentralized and physically located in the several states. Moreover, given the severe limitations that existed in the late eighteenth century with respect to communication and travel, these courts would be operating largely independently of each other, at least with respect to day-to-day judicial business. The practice of having members of the federal Supreme Court "ride circuit" and serve as intermediate appellate judges (along with local district court judges) certainly brought a centralizing presence that was undermined in 1891 when Congress abolished the practice. (81) Nevertheless, for the federal courts to play the role envisioned by Marshall and Story, these juridical entities would have to operate largely independently of one another. Rather than seeking to promote uniformity, the Framers instead sought to secure a local presence for the federal government via the district and circuit courts.

The Federalist Papers also lend material support to Professor LaCroix's thesis. "I am not sure but that it will be found highly expedient and useful to divide the United States into four or five or half a dozen districts, and to institute a federal court in each district in lieu of one in every State." (82) Hamilton adds that "[j]ustice through them may be administered with ease and dispatch and appeals may be safely circumscribed within a narrow compass." (83) In other words, federal courts were to be local federal institutions and would operate in a decentralized fashion. A more streamlined model for the federal courts could have been adopted--for example locating the federal judiciary in the national capital, with Congress and the President--but this approach was not taken. (84)

A practical need also existed for these local institutions to enforce federal rights because "[t]he reasonableness of the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial speaks for itself." (85) Moreover, "the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes." (86) Hamilton also observed that "State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws." (87)

In other words, in order to safeguard rights arising under federal law, local federal courts would be essential. Yet, if these courts were to be truly local, then they would have to be constituted and operate in ways that would give rise to regional differences in both the substance of federal law and also with respect to the procedures used to adjudicate federal law claims. Plainly, however, the benefits associated with securing a meaningful local presence for the federal government within the states must have been deemed a sufficiently offsetting benefit to justify the risk of independent, local federal courts rendering federal law non-uniform.


In The Politics, Aristotle argues that a well-ordered society should adopt institutional structures of government that vest the execution of particular tasks with the individuals or institutions that are best capable of executing the particular function at issue. (88) The more modern law and political science theory associated with this seminal idea is that of comparative institutional analysis. Professor Neil Komesar's work, for example, systematically considers which institution of government would be best suited to the adoption and implementation of specific government objectives. (89) In an ideal world, we would seek to optimize the performance of specific governmental tasks by assigning them to the institution best able to execute them, and we would also structure that institution in a fashion that is conducive to the performance of the task. (90)

Thus, if we seek accurate factual determinations and the entrenchment of specific governing principles, one would seek to create an institution in which direct political controls would be attenuated, so as to avoid having political considerations distort either factual analysis or the application of particular controlling general principles (such as, say, a rule against establishing a state church or religion). This is not to say that democratic accountability is not a good thing as a general matter; instead the concern relates to the question of incentives. A person holding office subject to a requirement of frequent reelection by the general citizenry will, in general, be more responsive to the perceived wishes of the electorate than a person who faces the voters at less frequent intervals. (91) Accordingly, from a broader historical perspective, members of the U.S. Senate, who hold six-year terms of office, (92) and who were elected by state legislatures rather than by the general citizenry until ratification of Seventeenth Amendment in 1913, (93) generally have been less directly responsive to the general public's wishes than members of the U.S. House of Representatives, who must stand for election every two years. (94)

In the judicial context, empirical evidence suggests that the practice of holding contested, partisan judicial elections undermines the quality of the justice system--if by "quality" one means neutrality with respect to the parties and outcomes. (95) Indeed, the very notion of a contested partisan judicial election raises serious conflicts between core First Amendment values and core due process values. (96)

Widely dispersing the power to act also might be conducive to better, more accurate decision making: if the same question must be decided by different decision makers, who are not bound to follow each other's examples, the probability of a conclusion being correct should be enhanced if these independent and autonomous decision makers nevertheless reach the same conclusion. By way of contrast, if the decision makers reach different conclusions, the certainty of a given potential answer seems compromised--the question, in fact, is debatable. (97)

This system of diffuse decision making extends beyond the federal system to the state courts, which must adjudicate federal claims on a regular basis. Thus, we have the district courts, the thirteen U.S. courts of appeals, the fifty state supreme courts, and the state intermediate appellate and trial courts, the D.C. court of appeals, as well as the local territorial trial and appellate courts in the U.S. territories, such as Guam, Puerto Rico, and the U.S. Virgin Islands, (98) as well as a handful of specialty federal courts, and so-called Article I tribunals, (99) all vested with making interpretative decisions about the meaning of the Constitution, treaties, statutes, and regulations. There is, in fact, a surfeit of decision makers operating both concurrently and largely independently of each other.

This diffusion of decisional authority, and the perceived ill effects of non-uniform federal law, explain and justify the "essential attributes" argument that seeks to require that the Supreme Court of the United States enjoy appellate jurisdiction over questions of federal law. In the absence of such appellate authority, federal law will differ from state to state, without any ability to create a single, national standard (at least with respect to constitutional questions). (100)

There are, of course, likely other factors at play here. One might reasonably ask whether either Congress or the President would wish to see the full judicial power of the United States vested in a single individual, holding life tenure, and capable of wielding a veto that effectively requires two-thirds of both houses of Congress and three-fourths of the state legislatures to override. (101) It should not be surprising that Congress has not acted to concentrate judicial power in a single individual or court, but instead has adopted policies that disperse and limit the ability of any single judge, or court, to disallow congressional policy choices. Were the judicial power to be more concentrated in fewer hands, and capable of more resolute exercise, the effects, at least from Congress's perspective, would plainly be quite negative. Particularly in a system that grants federal judges life tenure, Congress would never centralize judicial power because doing so would empower a politically entrenched group of rivals capable of thwarting the incumbent majority's will through the exercise of judicial review. By using structural constraints, rather than substantive restraints, Congress also avoids the appearance of attempting to usurp judicial authority (something that the Supreme Court has successfully resisted in the past and would likely attempt to resist in the future). (102)

But the merits of dispersing federal judicial power are not solely limited to maintaining congressional or presidential prerogatives. It is plainly much harder to capture hundreds of decision makers (thousands if one includes state court judges who may decide federal questions) than to capture a single juridical body. (103) By decentralizing the federal courts and creating separate juridical entities that operate more or less entirely independently of each other, Congress has greatly reduced the risk of agency capture with respect to the federal courts. (104) Capture avoidance provides another sound reason for creating a highly decentralized system of courts.

Accordingly, one should not be surprised that Congress has consistently adopted measures that have the effect of diffusing judicial power and preventing its vesting in any single individual (or even court). This approach both reduces the potential risk of federal judges thwarting Congress's will and also renders the federal courts less capable of capture (whether by the President or private interests). By separating and dividing judicial power, Congress both enhances its own relative institutional power and also, even if by accident or happenstance, has created a structural bulwark that helps to maintain the institutional integrity and autonomy of the federal courts. But the loss of uniformity constitutes a necessary and unavoidable cost of this decentralized vesting of federal judicial power in myriad hands.

The contrast with the executive branch is simply astonishing. To a remarkable degree, essential powers of the executive branch are vested directly in a single person, the President. Consider, for example, the Commander-in-Chief powers: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." (105) Even if the President cannot unilaterally declare war, he has the ability to initiate military confrontations that could, essentially, force Congress to take such action. (106)

The Treaty Power provides another example: the Framers vested the President with a unilateral and absolute veto power over the United States acceding to a particular treaty. Although the Constitution requires that two-thirds of the Senate ratify a treaty, only the President may introduce a treaty to the Senate for its advice and consent. (107) No matter how popular a treaty, Congress lacks any authority to force the United States government to join a particular pact. Other examples exist--it is doubtful, for example, that Congress could force the President to recognize a particular nation-state, or establish formal diplomatic relations with a specific polity.

To a significant degree, President George W. Bush was not far off the mark when he famously declared "I'm the decider." (108) The President enjoys wide latitude to exercise relatively vast discretionary powers. The Chief Justice enjoys no comparable power, and the federal judiciary lacks any single officer, or group of officers, capable of effective direct superintendence of the various subunits of the federal judiciary; (109) a material difference exists between directing a lower court's decision and reversing it on appeal.

In fact, the President's control over the litigation strategies of the Department of Justice and, in particular, the Solicitor General's office, has the effect of vesting the President with substantial oversight powers related to the appellate dockets of the federal courts. (110) In a very real sense, when a case involves a challenge to a federal law or regulation, and the President elects not to pursue an appeal after an adverse lower court ruling, the President can indirectly control the case load of the federal courts. (111)

If we conceive of the judicial task as being rooted in fact finding and offering principled reasons for particular decisions, then the highly decentralized structure of the federal courts makes perfect sense. Decentralizing decisional responsibilities--and authority--places a premium on agreement. For a rule to be truly binding, on a national level, either all of the lower federal and state courts must agree to a particular disposition of a case (which almost never happens in cases that implicate gray areas of constitutional law) or the Supreme Court must review a case and issue an opinion of sufficient clarity to remove any residual discretion from the lower courts. (112) The system places a premium on disparate decision makers all reaching the same conclusion--when this occurs, the decision enjoys both great formal scope of application and legitimacy. (113)

A very good case can be made that, if life-tenured, unelected judges are to be empowered to review the actions of the democratically elected and accountable executive and legislative branches, those decisions should enjoy limited scope of application absent agreement among a widely dispersed set of decision makers. The President obtains a direct mandate from "We the People," (114) and in turn the President enjoys the ability to make unilateral, binding decisions that are not subject to direct review either by Congress or the Courts. In a very real sense, the President is the decider on myriad issues of substantial importance.

The Chief Justice, on the other hand, is at most a "first among equals" who lacks any formal prescriptive powers over his colleagues--both on the Supreme Court and within the lower federal courts--and has absolutely no authority whatsoever over the state court systems. To the extent that a particular Chief Justice enjoys influence, it must be a function of his ability to persuade his colleagues of the wisdom of his vision of the Constitution; lacking any real power to compel, the Chief Justice relies instead on the power of persuasion. (115) Yet, the common perception of the Chief Justice suggests that, more often than not, the persons holding this office have been able to use the institutional tools at hand to move their colleagues to embrace their vision.

One must, of course, account for the possibility that when a President enjoys the power to make multiple Supreme Court appointments, including a Chief Justice, the new Chief seems to enjoy Svengali-like powers of persuasion. On the contrary, I rather doubt that Chief Justice Harlan Fiske Stone, Chief Justice of the United States from 1941 to 1946, was a particularly gifted vote gatherer. Instead, from 1937 to 1942, President Roosevelt had the ability to staff the Supreme Court with six Justices who shared his vision of the scope of federal power. (116) Indeed, Chief Justice Stone is neither particularly well regarded, nor particularly well remembered, as a jurisprudential thinker and leader. The same is true of Truman's appointee to the Chief Justice's seat, Fred M. Vinson, who served in a highly undistinguished fashion from 1946 to 1953. (117)

The relevant point here is that a Chief Justice's power of persuasion will almost certainly prefigure his ability to shape and control the direction of the law. A Chief Justice who enjoys a reliable working majority on the Supreme Court enjoys the luxury of "preaching to the choir," and his success in advancing a particular vision of the Constitution reflects, at least in part, his presence as a member in good standing of the incumbent majority voting bloc--nothing more and nothing less. And, yet, some Chief Justices have been able to persuade successive appointees of the opposition political party to subscribe to their vision of the Constitution. Chief Justice John Marshall undoubtedly provides the best example of this phenomenon. The intrinsic weakness of the tools of the office will be most apparent when the Chief Justice finds himself regularly in the minority.

By way of contrast, a Chief Justice who enjoys a reliable working majority on the Court might seem to be more persuasive than he really is--again, the "preaching to the choir" effect in action. For example, Chief Justice Earl Warren inherited a Supreme Court comprised of members who shared his views about the proper scope of the Fourteenth Amendment and the Bill of Rights. So, it should not be particularly surprising that he was able to reliably muster majorities in cases like Mapp v. Ohio (118) and Reynolds v. Sims. (119)

It also bears noting that a great deal of jurisprudential distance separated the most liberal of the Roosevelt, Truman, and Eisenhower appointees, such as Justices Black, Douglas, Warren, and Brennan, from more conservative members of the Court during this period, such as Justice Frankfurter, Chief Justice Vinson, and later, Justices Minton, Stewart, and Harlan. Nevertheless, with these important caveats, Chief Justice Warren generally enjoyed a fairly reliable working majority on the Court, which meant, in practice, that his leadership skills in many decisions were probably less important than they would have been had his views fallen outside the mainstream of the Supreme Court as a whole.

One should take care, however, not to overstate this point. Chief Justice Warren's ability to rally a unanimous 9-0 Court in Brown (120) required considerable persuasive effort--and skill--given the presence of several members of the Court who were not at all sympathetic to vigorous enforcement of the Equal Protection Clause (121) in the context of public schools or, for that matter, more generally. Thus, while garnering a simple majority in Brown was not a heavy lift, gathering and leading a unanimous Court in support of a strong opinion--an opinion that famously declared that "[s]eparate educational facilities are inherently unequal," (122) and, accordingly, that "in the field of public education the doctrine of 'separate but equal' has no place" (123)--represents a remarkable display of judicial leadership.

This general dynamic also describes the Rehnquist Court. Although it is certainly true that Justices O'Connor and Kennedy controlled the outcomes of most closely divided cases, Chief Justice Rehnquist could usually rely on the support of at least three other members of the Court. Accordingly, his ability to command a majority rested less on persuasion than it would have if the Supreme Court's membership had been of a less strongly conservative cast.

However, counterexamples do exist. For example, although Chief Justice John Marshall joined a Supreme Court bench heavily staffed with Federalists who supported a vigorous and effective national government, he was the last Federalist Party nominee to the Supreme Court for literally two decades. (124) A succession of Democratic-Republican Party (125) Presidents followed John Adams, including Jefferson, Madison, and Monroe. Accordingly, new appointees to the Supreme Court and the lower federal courts were presumably not as strongly committed to protecting the authority of the federal government as was Chief Justice Marshall.

Yet, somehow, the appointment of Jeffersonian nominees did not seem to alter or shake the Supreme Court's role as the principal defender of federal authority. McCulloch v. Maryland, (126) for example, provided a highly expansive gloss on the scope of the Article I, Section 8 enumerated powers in general, and on the Necessary and Proper Clause in particular. (127) Gibbons v. Ogden, (128) an even later case, provides a second example; the decision established a broad scope of application for the federal preemption doctrine with respect to regulations affecting the instrumentalities of interstate and international commerce. (129)

At the time John Marshall became the third Chief Justice of the United States in 1801, the Supreme Court had six seats (the Chief Justice and five Associate Justices) and all were held by Federalist Party appointees. (130) A Congress controlled by Jeffersonians added a seventh seat in 1807. (131) By 1812, Presidents Jefferson and Madison had named five of the six Associate Justices--Johnson (1804), Livingston (1807), Todd (1807), Duvall (1811), and Story (1812). (132) Thus, with the appointment of Justice Story in 1812, Chief Justice John Marshall was one of only two remaining Federalist Party appointees serving on the Supreme Court. (133) In light of the ocean separating the views of Jefferson and Madison, on the one hand, and Marshall, on the other, regarding the proper scope of federal authority, one would have expected to see Chief Justice Marshall increasingly marginalized, perhaps to the point of irrelevance in 1812.

This, of course, did not happen. One could posit an extraordinarily unlucky string of Supreme Court picks by Presidents Jefferson, Madison, and Monroe, but this explanation seems too facile. Given the controversy of the "midnight judges" appointed at the bitter end of the Adams Administration after Vice President Thomas Jefferson and his Democratic-Republicans had defeated President John Adams in the national presidential election of 1800, one would have thought that the Democratic-Republican Party's members would have used a screening process for judicial nominees that would have made the Department of Justice under either Alberto Gonzalez or Ed Meese blush. It is simply not plausible to posit an extraordinary run of bad luck--six bad picks (counting Associate Justice Thompson, appointed by Monroe in 1823). (134)

Instead, it seems clear that Chief Justice Marshall was able to co-opt the Democratic-Republican appointees; he brought them around from the Democratic-Republican vision of a highly limited, subordinate, federal government to one that embraced a strong, powerful, and effective set of national governing institutions. It also probably helped that between 1812, with the appointment of Justice Story on February 3, 1812, and 1823, with the appointment of Justice Thompson on September 1, 1823--a period of over eleven years--the membership of the Supreme Court remained unchanged. (135) Five members of the Supreme Court, a comfortable working majority, served together from 1807, with the addition of Justice Todd in the newly created seventh seat, to 1823--a span of sixteen years. (136)

Given the institutional weakness of the Supreme Court in the early years of the Republic, and the fact that Marshall himself was a somewhat controversial holdover appointee from the first presidential administration to be electorally repudiated, it is nothing short of amazing that Marshall was so successful in bringing his colleagues to share his vision of a powerful and effective central government. His success, however, came not because of the perquisites of being Chief Justice, but rather despite the near-total absence of such perquisites.
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Title Annotation:Abstract through II. Comparative Institutional Advantage, Public Choice, Agency Capture, and the Benefits of Decentralized and Collective Decision Making Within the Federal Judiciary, p. 1021-1058
Author:Krotoszynski, Ronald J., Jr.
Publication:Notre Dame Law Review
Date:Jan 1, 2014
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