More on judicial behavior

Lee Epstein and Jack Knight are true experts in the study of judicial behavior. They are empirically trained, deep thinkers and excellent writers. They do not grind axes.

Lee Epstein is the Provost Professor of Law and Political Science and the Rader Family Trustee Chair in Law at the University of Southern California. She is also now serving as a Phi Beta Kappa Visiting Scholar, a Guggenheim Fellow, and a Lecturer in Law at the University Chicago. Professor Epstein is a Fellow of the American Academy of Arts and Sciences and the American Academy of Political and Social Science.

Jack Knight is the Frederic Cleaveland Professor of Law and Political Science at Duke University. His scholarly work focuses on modern social and political theory, law and legal theory, and political economy. He holds a joint appointment with Duke Law School and Duke’s Trinity College of Arts and Sciences, where he teaches in the Politics, Philosophy and Economics Program.

If you really want to understand what motivates judges, you must read their a recent article entitled U.S. federal judges are motivated by much more than putting their policy and political preferences into law, London School of Economics and Political Science (October 22, 2013). It is here.

For a long time, political scientists thought judges were motivated primarily by their political and policy preferences. But what if that were not true? For one thing, it would cause political scientists to completely rethink their approach to the study of judges.

What follows is a brief summary of this extremely important article:

What motivates U.S. federal judges and the types of decisions they make? While for a great deal of time, many judicial commentators have maintained that translating their own political values into law is the prime motivator for federal judges, Lee Epstein and Jack Knight disagree. Looking at the U.S. courts over the past 60 years, they find evidence that policy-centric accounts can no longer explain judicial behavior. They argue that judges are motivated by aspects of job satisfaction, external satisfaction, leisure, salary, and promotion – not just by ideology.*

I commend this short article to you. It is well-worth reading as it is brief and yet paints in clear words a portrait of judicial behavior that is far more realistic than standard academic or Conservative/Liberal (Progressive) thinking.


*For more of the work of Epstein and others (most especially Judge Posner) about judicial behavior and particularly the judicial behavior of district judges, see my earlier post here.

21 responses

  1. I find the essay too reductive and simplistic to be of value. Aspects of job satisfaction are nearly universal for anyone who works for a living, whether they repair cars or write software or judicial opinions. But it is also safe to say that the values which motivate judges are already so internalized by the time they reach the bench that they seldom consciously attempt to enact those values in their decisions. Yet those values are surely there, even if the fish is unaware of the water.

    Moreover, district judges are constrained in their ability to advance their policy preferences. Fear of reversal makes them generally refrain from pushing too far ahead of precedent. However, the Supreme Court and the Courts of Appeal have no trouble doing exactly that when their political views provide an opportunity. One-third of Supreme Court cases are decided unanimously? That means that two-thirds aren’t. And look at the Citizens United and the Shelby County cases, to mention only two recent intellectually dishonest travesties, which cannot be explained by any other basis than the policy preferences of CJ Roberts and his colleagues.

    So the authors are destroying their own straw man.

  2. This is a pristine opportunity to revisit The Blackmail of Richard Arnold (in Anastasoff), and why his decision had to be vacated en banc, even though it did violence to the concept of law as we know it. Judge Arnold couldn’t find any precedent on point–United States v. National Bank of Commerce, 775 F.2d 1050 (8th Cir.1985), didn’t cut it because the Supreme Court rendered the question that was left hypothetical–because there really aren’t any. Except in California, depublication simply is not done.

    Standing alone, the good faith of judges is far too slender a reed to support the weight of rights under law and, in light of Posner’s extensive and candid observation on the subject, this study is cumulative. Jefferson had it right two centuries ago: “In truth, man is not made to be trusted for life if secured against all liability to account.”

    The most appalling aspect of the en banc defenestration of the Anastasoff decision was in the fact that even a judge with the personal character and conceded brilliance of Richard Arnold was able to find enough of a backbone to stand his ground. He could have written a scathing dissent and, as the question of attorney’s fees was still open at the time the en banc decision was issued in Anastasoff, the matter most certainly was not moot.

    And herein lies the problem: The only rights we have are the ones we are able to stand up and assert, and our judges have enough character to enforce. But while one man and the truth is a majority in other fora, that calculus rarely computes in our federal appellate courts.

    In Anastasoff, the judges of the Eighth Circuit voted their self-interest. From Callender and Marbury to the execrable Pierson v. Ray and Stump v. Sparkman, and many other cases in between, federal judges have displayed the pronounced and persistent habit of placing their posteriors on the scales of justice for their own personal benefit.

    Here, I draw from my own experience as a CPA. Ten percent of the work was stimulating: I had a Forbes 400 client, who was willing to spend whatever it took to get to the best answer and called us in at the conceptual phase of his deals. (A CPA can either be a brain surgeon or a coroner; it depends on when we are called in.) But 90% of the work was the drudgery of compliance, which included the supervision of subordinates just learning the ropes. Getting more of the good work is what motivated me to earn my master’s, take night classes on how to make Dutch sandwiches, and eventually, to make the fatal mistake of enrolling in law school.

    As Jefferson quipped, judges “are as honest as other men and not more so.” They are selfish, vain, arrogant–in other words, human. Many–Scalia recently admitted that he resembles this remark–literally work for nothing, because the job is so much fun. Judges are going to deposit their posteriors on the scales of justice for their own personal benefit to preserve that, because they are human … and because they can. Like me, they want to do the “fun” work.

    If “discretionary certiorari review” were struck down as unconstitutional, of if every appeal was endowed with precedential effect, it is easy to spot the losers. As everyone would have a right to review by SCOTUS, Justices would be forced to spend 99% of their time fixing the torrent of obvious errors committed by our corrupt and/or incompetent lower courts. The size of the Court would have to increase ten-fold (it is hard to say how much larger the Courts of Appeal would have to become), which means that no one will offer seven-figure advances for their mindless autobiographies, Frank Rich, Nobody Knows the Lynchings He’s Seen, N.Y. Times, Oct. 7, 2007 (in re: Justice Thomas), or invite them to rub elbows with the Queen. Queen Elizabeth II Opens New UK Supreme Court, Assoc. Press, Oct. 17, 2009 (four Justices attended).

    Job satisfaction among federal judges would become an issue. Due to the slothful refusal of the judiciary to impose any kind of meaningful discipline on lower courts, the United States Circuit Courts of Appeal are no longer deserving of that appellation, having devolved into no more than playpens for petulant lawyers with galaxy-class egos, who have become arrogant enough to publicly declare that they are just too important to do their jobs:

    “[A]s the docket is “dumbed-down” by an overwhelming number of routine or trivial appeals, judges become accustomed to seeking routine methods of case disposition. … The situation is like that of a competitive tennis player forced to spend the bulk of his time rallying with novices. Just as the player’s competitive edge will erode from lack of peer contact, so are judges’ legal talents jeopardized by a steady diet of minor appeals.” [Edith Jones, CA-5]

    “A larger appellate judiciary would include “an unacceptable number of mediocre and even a few unqualified people,” and the quality of an enlarged federal judiciary would be “indistinguishable from the most pedestrian of state judiciaries.” [Jon Newman, CA-2]

    “The desirability of being a federal judge is inversely proportionate to the number of routine cases brought to federal court. … The professional quality of those who seek a federal judgeship is inevitably affected by the prestige, the challenges and the responsibilities of being a federal judge.” [the late Alvin Rubin]

    William M. Richman, Much Ado About the Tip of an Iceberg, 62 Wash. & Lee L. Rev. 1723, 1728-29 (2005) (demonstrating that the Courts of Appeal are de facto certiorari courts).

    Judge Rubin nailed it to the wall. If publication stats are to be believed, 90% of an appellate court’s work is so mundane that it is routinely shunted to law clerks, which don’t have to do even a competent job because judges are too busy doing “important” things to even bother with checking their work. Even though he said he “felt dirty” afterward, Perfunctory Justice: Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12, even Judge Arnold indulged. To be blunt, the quality of the judicial work product has been eroded to the point where the right to a meaningful appeal has been effectively eradicated. As William Glaberson of the New York Times reports:

    “Court statistics show that Federal appeals courts publish only 24 percent of their decisions, down sharply from 54 percent in 1985. ”It is sort of a formula for irresponsibility,” said Richard A. Posner, the chief judge of the United States Court of Appeals for the Seventh Circuit in Chicago. ”Most judges, myself included, are not nearly as careful in dealing with unpublished decisions.”

    William Glaberson, Caseload Forcing Two-Level System for U.S. Appeals, N.Y. Times, Mar. 14, 1999 at 1 (emphasis added).

    Lower court judges know this, and are equally cavalier in the cases they don’t want to bother with–most notably, sex-discrimination, employment, and pro se civil rights cases. Like it or not, the dots do connect, and the picture is not a pretty one.

  3. Richard,

    I get your point.

    But, the broader point is that even at the level of the Supreme Court, and the frequency goes up as you go down the judicial ladder, there are a large number of cases, perhaps the great majority, that do not appear to be driven by policy or political preferences. That is is important if only because political scientists ought now and in the future to concentrate on broader aspects of human behavior, in addition to policy and political preferences, when studying judges.

    For people who are involved in the appointment process, this, too, ought to be important. It may explain why Presidents are very poor at picking judges who remain “loyal” to the prevailing ideology of the President at the time of appointment. Think Blackmun or Kennedy or Souter.

    I also believe that the study of judicial behavior would be materially assisted by the research of social psychologists rather than relying only upon research conducted by political scientists and economists and law professors. Indeed, I hope Epstein, Landes, Posner and the others who engage in systematic studies of judicial behavior will add a social psychologist to their team.

    Yet, this could all be bunk, “reductionist” to use one of your words. Still, looking for the “God particle” remains interesting nonetheless to nerds like me. Simply put, it “fills the time” as my wonderfully wry but perpetually drunk mother used to say.

    All the best.


  4. Judge, you are certainly correct that most cases are not political in the sense of implicating personal policy preferences, e.g., was the contract breached? Was the defendant negligent? Was the copyright infringed? I also agree with you that social psychology has much to contribute. But the main problem I have found in my practice is the frequent lack of empathy and judicial class bias which favors the well-heeled litigant over the less fortunate. Judges after all are more likely to come from the former than the letter. But that bias is not universal, and the judges who don’t act that way are my heroes. So to me, that’s the God particle. How can it be otherwise so long as we are judged by humans? We are all products of everything which has happened to us up to this moment.
    I once asked a judge whether she had ever been constrained by the law to decide a case in a way which was politically objectionable to her. She said “never.”

  5. Richard,

    Got it.

    I am intrigued by your statement: “I once asked a judge whether she had ever been constrained by the law to decide a case in a way which was politically objectionable to her. She said ‘never.’”

    First, do you think the judge meant what she said? If so, what did she mean?

    Second, if the judge meant what she said, and she meant that she can and will do pretty much as she likes, then I have no respect for her. While I am not dumb enough to think that I can overcome all my deep seated biases,I try very hard not to do what I would be inclined to do if I were a “kadi under a tree dispensing justice according to considerations of individual expediency” (to use Justice Frankfurter’s formulation).

    All the best.


  6. What she meant was not that she could do what she likes, not at all. I have enormous respect for her, and her colleagues do as well. Rather, we discussed the large range of discretion which the law permits a judge to exercise, well within the bounds of precedent and statute. In so many ways, a judge can shape the outcome of a case by, for example, limiting or expanding discovery, granting or denying extensions of time, making evidentiary rulings, finding an issue of fact on a summary judgment motion and so many more. All of these are essentially unreviewable if not pushed too far.

    I will give you a personal example. I brought a defamation case here in the SDNY. At the first conference, the defendant said they would move to dismiss. The judge said in essence, that’s fine, but discovery proceeds in the meantime. Then the case was re-assigned to a new judge, who promptly stayed discovery, making it impossible for me to find evidence to support my claims of malice, the defendant’s state of mind. The case law says it’s within the judge’s discretion whether discovery proceeds while there is a motion to dismiss. So which judge was right? And what’s my remedy?

    So it is precisely at the margins where the judge’s politics and personal views can put a thumb on the scales in such a way as to control the outcome. There is nothing intrinsically evil about this; it is human nature. But it cannot be avoided and must be acknowledged. Remember the dictum of that immoral monster Roy Cohn: “don’t tell me what the law is; tell me who the judge is.”

  7. Hi Judge RGK!

    I’m an ordinary person and not a legal professional, but I would like to thank you for pointing out this article. I have suspected for some time that federal judges must have more than political ideology to motivate them and it gives me a great deal of relief to think so.

    I have worked in private and public education for a number of years, including Title I schools. I remember when the Kitzmiller v. Dover decision came out. I read the whole thing and was really happy that Judge Jones came to the decision that he did. I also thought the decision was very well written–so that someone like me could understand it. Perhaps what really gave me hope was that Judge Jones was a Republican appointee, yet he certainly did not toe the Republican party line in coming to his decision. I don’t want to stereotype, but I think the common perception is that Republicans are generally very conservative and lean towards a more fundamentalist Christian view of things. I happen to believe that public schools should be places where children can come together and get the best education they can without feeling pressured to believe in any ideology–religious or otherwise–that might exclude them because of their own differing backgrounds. For this reason, with this decision, Judge Jones became one of my heroes.

    More recently, I have been following the work of Judge Murray Snow in the Melendres v. Arpaio case here in Arizona. You may know that Judge Snow was also a Republican appointee but he has come down appropriately hard on the Maricopa County Sheriff’s Office for racial profiling. If the MCSO is allowed to racially profile Latinos, then when do they come after those of us in other ethnic minorities? For those of us who have been racially profiled many times in the last 2,000 years with disastrous consequences, the idea of an expansion of racial profiling is a real nightmare. For his work in upholding our rights under the Fourth and Fourteenth Amendments in Melendres v. Arpaio, Judge Snow is now also one of my heroes.

    I realize that there are a lot of attorneys out there who do their very best to defend the legal rights of their clients. I realize that there are some attorneys who may be a bit feckless, too. However, I have the feeling that you guys and gals who are appointed as judges to federal trial courts are important defenders of our Constitutional rights. If political ideology ever becomes the dominant factor in a federal trial judge’s decisions about those rights, we will really suffer. That may all sound pretty naive, but that’s the way I see it.

    Thanks for everything.

  8. CLD,

    Thank you for taking the time to comment. It is important that the courts, and especially the federal courts from my vantage point, have the support, but not the uncritical support, of everyone. By the way, one of my wife’s sister’s won one of the Alice Buffett Teaching Awards in 1989 and our daughter (now teaching in China) began her career in the public schools of Colorado teaching at a school where the children were mostly racial minorities from deeply disadvantaged backgrounds. So, I understand your devotion to teaching.

    All the best.


  9. Rich, when I clerked for AMK on the 9th Circuit, I was surprised by how many cases were “easy” usually in the sense that the appellant was wasting his or her time and money. It would have been impossible to write an opinion reversing without looking like a lawless fool. Of course, there were a fair number of challenging and interesting cases where judges could have a good faith disagreement, but I’d say they accounted for only maybe 15% of cases. That’s not to say that I “blamed” all the appellants with hopeless appeals. A lot of them were criminal defendants who were subject to very long sentences, so there was nothing to lose. Anyway in those cases there probably wasn’t much to explain judicial behavior except “the law.”

    I did read some fairly interesting explanations of the decline in the number of cases that the Supreme Court was taking. One explanation that I found fairly convincing was that the group of nine justices who served after Breyer’s 1994 appointment (Rehnquist, Stevens, Scalia, Kennedy, O’Connor, Thomas, Souter, Ginsburg and Breyer) until Rehnquist’s 2005 death (which was actually preceded slightly by O’Connor’s announced retirement, but she served until being replaced by Alito, was group to serve the longest continuously on the Supreme Court.

    Because (of course) it only takes 4 votes to grant certiorari in theory one should see a lot of 5-4 decision. But at least during that stretch, the Justices got extremely good at predicting how their colleagues would vote, leading to fewer cases being selected for review. The theory ran that the relatively “liberal” group of Stevens, Breyer, Ginsburg and Souter wouldn’t bother to vote to take a case unless they had some reason to think that they could bring along Kennedy or O’Connor. Best, Pat.

  10. Pat,

    That is interesting. I wonder how that vote counting sophistication impacts the clerks who work on the cert. pool? In other words, for the clerks who work for one of the four but also work on the cert pool, I wonder what instructions they receive about their cert. pool memos? I suppose we’ll never know.

    All the best.


  11. Rich, as you say we’ll never know. Stevens never would participate in the cert. pool. I am told by Supreme Court clerks that they tried to play it pretty straight in writing in the cert. pool because their work was on display for the entire Court and all of their co-clerks to see.

    One funny story I heard from a White clerk was that one of his co-clerks was a brilliant guy, but a sloppy proof reader. He wrote a really convincing memo on why the Court should grant cert. in a case and the vote was 8-1 to take the case. The 1 was Blackmun. Word got around that Blackmun voted “no” because this clerk’s work always had about a typo per page, so Blackmun never believed anything he wrote. Ouch.

    I am told that realistically only about 5% of cases have even an outside shot at cert. being granted. There’s no split in the lower courts, no issue of great national importance — the petitioner just didn’t like the result below. A fair percentage are appeals in diversity cases where the petitioner argues that the courts below got the applicable state law wrong. The only time the Court grants writs in diversity cases if there’s some collateral issue like personal jurisdiction that interests it.

    If you narrow it down to that relatively small group, my guess is that the cert. pool memos look like bench memos. They may recommend a particular outcome, but if the recommendation is to grant the writ I’m sure that at this point the Justices get interested enough to read the petitions and the opposition carefully.

    I had one case in practice where there was a fairly significant equal protection issue involving whether it was constitutional, under California’s scheme for forming a new city, to allow just those inside the borders of the new city to vote, or whether the franchise had to be extended to the rest of the unincorporated county from which the new city was “seceding” (it wasn’t really seceding, but the other side argued that in practice it was).

    We won at trial (I represented the pro-cityhood group), got reversed in a wild-haired opinion by California’s intermediate appellate court, but then won 7-0 in front of the California Supreme Court and the other side petitioned for cert. I was pretty sure that it was in the “no chance” bin, but I have to admit to a large exhale when the U.S. Supreme Court denied cert. I guess it would have been cool to argue in front of the Court, but I was completely content to take my 7-0 win in the California Supreme Court and go home.

    This was particularly true because my fee award was riding on winning on the merits as the group had no money left, but California had a very broad “private attorney general” doctrine, under which the trial court awarded me fees. It remains to this day probably my favorite hearing of all time. I was a very young lawyer (late 20’s) with this huge case, up against the County attorney and the outside counsel they hired. The County argued left, right and sideways about why I shouldn’t get paid. The trial court asked the County attorney, “Well you’re gettin’ paid, aren’t you Mr. Bleier?” “Yes, your honor.” “Well the boy over their took your butt to the California Supreme Court and pretty much booted it around, didn’t he?” The County asked for a 5 minute recess and we went out into the hallway and settled for about 95% of my request. Best, Pat.

  12. While the well-heeled can often buy consideration of constitutional issues because they can afford the “right” law firm, for the unwashed masses, review by the United States Supreme Court really means a cursory review by a fresh-faced 25-year-old kid out of Harvard who has never tried a case and is petrified at the prospect of erroneously recommending cert (“a DIG”). David R. Stras, The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 Tex. L. Rev. 947, 975 (2007). For this reason, I would question the assumption that only 5% of petitions are cert-worthy. I would venture a guess that it is closer to 50%.

    My question to you, Professor, is why self-evident errors at the lower court level ought not be corrected by SCOTUS as a matter of course. The retort that we would need more Justices was laid waste by Judge Arnold: “If this is true, the judicial system is indeed in serious trouble, but the remedy is not to create an underground body of law good for one place and time only.” Anastasoff, 223 F.3d at 904. If, in the words of Justice Alito, we have the right to “demand an evenhanded enforcement of the law.” Ricci v. DeStefano, No. 07-1428, 557 U.S. ___ (2009) (Alito, J., concurring; slip op. at 13), and as a matter of law and logic, a right cannot exist without an effective remedy for its breach, Ashby v. White [1703] 92 Eng.Rep. 126, 136 (H.C.); accord, Poindexter v. Greenhow, 114 U.S. 270, 303 (1884), why doesn’t the judiciary owe us a corresponding duty? If “[c]aselaw on point is the law, Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001), which judges are bound to follow, In re Smith, 10 F.3d 723 (10th Cir. 1993), and we are entitled to rely on these court pronouncements as authoritative statements of the law, Moragne v. States Marine Lines, 398 U.S. 375, 403 (1970), isn’t an irregular decision a violation of that duty? As a necessary consequence of its status, the United States Supreme Court has a duty to “superintend and govern” inferior tribunals, thereby ensuring their fealty to the law of the land. 2 The Works of James Wilson 149-50 (James D. Andrews ed., 1896). Given that he wrote Article III, my guess is he knew what was intended.

    How can you reconcile the practice of discretionary certiorari review with the concept of rights under law? Again, as Judge Arnold points out with his trademark incisiveness, “Those courts [who openly flout precedent] are saying to the [populace]: “We may have decided this question the opposite way yesterday, but this does not bind us today, and, what’s more, you cannot even tell us what we did yesterday.” As we have tried to explain in this opinion, such a statement exceeds the judicial power, which is based on reason, not fiat.” Anastasoff, 223 F.3d at 904. As we didn’t fight a revolution to replace King George with “King Judge,” it’s a pretty safe bet that the judicial Power does not extend quite that far.

  13. Dear Pat,

    Great insights and even better story about fees.

    Regarding Justice Blackmun, I clerked for Judge Ross who replaced Justice Blackmun on the Circuit. Bill Riley (now Chief Judge Riley, of course), my classmate and friend, clerked for Judge Lay. The two of us–Riley and me–interviewed jointly with Lay and Ross and they allowed us to select the judge for whom we would work. Lay and Ross each had their chambers then in Omaha. Point being is that I often spent time in Judge Lay’s chambers.

    Judge Lay had a particularly willful secretary and that matched the personality of her boss. Anyway, I have it on pretty good authority that when Justice Blackmun was a Court of Appeals judge he annoyed every other chambers by nit picking grammar gremlins. On one opinion that Judge Lay wrote, and that then Judge Blackmun agreed with, Blackmun withheld his concurrence over a comma as compared to a semicolon or some such thing. It was undisputed by every objective observer that the dispute was meaningless–either way, the opinion read the same for practical purposes. Lay would not budge and Blackmun would not budge. While the standoff was resolved somehow, I am told that more time was spent between the two chambers on this grammar question as the dispute boiled over than was spent on the merits of the case itself.

    Oh, and regarding proof reading, the only time Judge Ross ever said anything sharp to me was on an opinion that had a bunch of typos. He reminded me that he was not my “goddamn editor.” I still can’t proof stuff as Jan and Jim will attest.

    All the best.


  14. Ken, I believe that nothing close to 50% of U.S. Court of Appeals decisions are “cert worthy.” A large percentage of U.S. Court of Appeals decisions are disposed of with an unpublished opinion (though even that term isn’t really accurate anymore, because they are actually published in Fed. Appx. and available on line). They really aren’t debatable.

    Although it’s undoubtedly true that having superior resources will buy you superior legal representation, no matter who represents you you’re still subject to the same screening by, as you say, a fresh faced kid from Harvard.

    I will say this — it’s easy to over-estimate your influence as a law clerk. Ex-clerks who write about their role on the Court (I say this not having read the article) have a tendency to overstate their role, with judges having no real opportunity for rebuttal.

    I don’t see anything antithetical to the rule of law in having the top of the judicial pyramid having discretion to pick which cases to review and which not to review. Now, I happen to think that it’s perfectly fair to criticize the Supreme Court (or any other court) for over-reaching and making political decisions that are best left to the political branches, but that seems to me to be a different question. Best, Pat.

  15. Rich, I also have it on pretty good authority that Justice Blackmun was the “worst” Justice to work for on the Court (recognizing of course that most of us would have taken the job in a heartbeat coming out of law school). The reason was that he was so fussy. He also reputedly changed his mind a lot, if not on the result at least on the rationale. So his clerks would go through several drafts and think they were almost done, only to have to basically start over. A woman who clerked for him was a friend of one of my co-clerks and she said that the year she worked for him, the only day she didn’t go into the office was Thanksgiving. The other 364 days she spent at least some time in chambers. Now some of that might have been her. Let me put it this way — nobody would get me into the office 364 out of 365 days. I’d quit first. Best, Pat.

  16. Pat,

    I have heard much the same thing. Moreover, any judge who creates an environment where kids feel compelled to come to work 364 out 365 days a year is a jerk if not a slaveholder. Frankly, one gets the sense that Blackmun felt in over his head.

    All the best.


  17. Why even bother having “precedent” if you can’t rely on it? That was the whole point Judge Arnold was trying to make in Anastasoff: If a judge can decide a case one way on Monday and the other way on Tuesday, do we even HAVE the rule of law? Such discretion “exceeds the judicial power, which is based on reason, not fiat.” Anastasoff, 223 F.3d at 904.

    Justice Wilson–the principal author of Article III–explains:

    “In every judicial department, well arranged and well organized, there should be a regular, progressive, gradation of jurisdiction; and one supreme tribunal should superintend and govern all the others.

    An arrangement in this manner is proper for two reasons. 1. The supreme tribunal produces and preserves a uniformity of decision through the whole judicial system. 2. It confines and supports every inferior court within the limits of its just jurisdiction.

    If no superintending tribunal of this nature were established, different courts might adopt different and even contradictory rules of decision; and the distractions, springing from these different and contradictory rules, would be without remedy and without end. Opposite determinations of the same question, in different courts, would be equally final and irreversible.”

    2 The Works of James Wilson 149-50 (James D. Andrews ed., 1896).

    As Suetonius duly records, the Roman emperor Caligula imposed taxes on food, lawsuits, and wages, but did not publish his tax laws; as a result, “great grievances were experienced from the want of sufficient knowledge of the law. At length, on the urgent demands of the Roman people, he published a law, but it was written in a very small hand, so that no one could make a copy of it.” Suetonius, The Lives of the Twelve Caesars 280 (trans. A. Thomson; Bell, 1893), Ch. 4, § LXI. If anything, Americans’ predicament is even worse: We can read “the laws” until we go blind, but we cannot rely on them. We literally endure a regime of “unknowable law,” where hide-bound pronouncements of the United States Supreme Court scarcely even qualify as polite suggestions.

    I don’t see how it is even possible to have a rule of law when judges can disregard it willfully with impunity, and the litigant who draws the short straw has no effective recourse. I can’t square that circle, and with Judge Arnold on my side, I feel I am in some fairly respectable company.

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