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Abstract:
This Review Essay compares and evaluates two recent books on Supreme Court Law clerks, Courtiers of the Marble Palace by Todd Peppers and Sorcerers' Apprentices by Artemus Ward and David Weiden. Both books add to the understanding of the role of law clerks within the Supreme Court - Courtiers through its primarily historical approach and Sorcerers' Apprentices through its more ambitious statistical approach.

This Review Essay also reports the results from the first empirical examination of every pool memo from four Terms of the Supreme Court: October Terms 1984, 1985, 1991 and 1992. Three characteristics of the cert pool become apparent: (1) it is stingy with respect to making grant recommendations; (2) it emphasizes objective criteria of certworthiness in making its recommendations, such as the presence of lower court conflict; and (3) there is statistical evidence suggesting that its recommendations are correlated with the eventual decisions made by the Court on petitions for certiorari.

supreme court, law clerks, cert pool

Abstract:
With burgeoning caseloads and persistent vacancies in many federal courts, senior judges play a vital role in the continued well-being of our federal judiciary. Despite the importance of their participation in the judicial process, however, senior judges raise a host of constitutional concerns that have escaped the notice of scholars and courts. Many of the problems originate with recent changes to the statute authorizing federal judges to elect senior status, including a 1989 law that permits senior judges to fulfill their statutory responsibilities by performing entirely nonjudicial work. Others arise from the ambiguity of the statutory scheme itself, which seems to suggest that senior status represents a separate constitutional office, requiring reappointment, even though senior judges nominally retain judicial office under federal law.

In the first scholarly article addressing the constitutionality of senior judges, the authors examine two general constitutional objections: (1) whether the requirement that senior judges be designated and assigned by another federal judge before performing any judicial work violates the tenure protection of Article III; and (2) whether allowing judges to elect senior status, without a second intervening appointment, violates the Appointments Clause. They also examine whether two specific types of senior judges - the bureaucratic senior judge who performs only administrative duties and the itinerant senior judge who sits exclusively on courts outside his home district or circuit - violate the Constitution.

The authors conclude that the current statute authorizing senior judges raises serious constitutional problems that should be addressed by Congress or the Judicial Conference of the United States. In that respect, they formulate a number of straightforward suggestions to repair senior status without having to sacrifice any of the considerable benefits that senior judges have conferred on the federal judiciary over the years.

senior judges, federal courts, retirement

Abstract:
The practice of circuit riding by Supreme Court Justices is a concept as old as the federal judiciary itself, and has a storied history that spans the first 120 years of this nation's history. Yet the practice is also one of the least explored aspects of the Judiciary Act of 1789, and has been given little attention in the scholarly literature.

In addition to exploring the history of circuit riding, this Article proposes its renewal by requiring Supreme Court Justices to spend at least one week per year hearing cases on the United States Courts of Appeals. As the Article explains, many of the reasons favoring abolition of the practice, such as the Supreme Court's crushing caseload during the late nineteenth century and the dangers and delays associated with transcontinental travel, are no longer concerns for today's Justices. Furthermore, circuit riding would confer a number of important benefits on modern Justices, including exposing them to a wider array of legal issues, the laws of various states, and the difficulties faced by the lower courts in implementing the Supreme Court's sweeping (and sometimes confounding) rulings. Equally important, having the Justices perform work on the circuit courts is both reasonable and workable, and closely matches the competencies of the Justices to the courts on which they would sit. This Article argues that it is time to renew an important component of the framers' vision for a vital and independent judiciary: the practice of circuit riding.

Circuit Riding, Supreme Court, Justices

Abstract:
The first vacancies on the Supreme Court in eleven years have sparked renewed debate about the continued viability of life tenure for federal judges. Scholars have decried life tenure as one of the Framers' worst blunders, pointing to issues such as strategic retirement, longer average tenure, and widespread mental infirmity of justices. In this Article, the authors argue that, notwithstanding the serious problem of mental and physical infirmity on the Court, life tenure should be retained. They also argue that recent statutory proposals to eliminate or undermine life tenure, for example through a mandatory retirement age or term limits, are unconstitutional.

Surprisingly, scholars have failed to take a multidisciplinary approach to the question of life tenure, or to propose alternatives that address its weaknesses without abolishing it. The authors address that gap by adopting an incentives approach to Supreme Court retirement. They first demonstrate that, as an historical and empirical matter, pensions have been the most important factor in influencing the retirement timing of Supreme Court justices and comparable actors over history. Building on that track record, the authors propose that Congress create a golden parachute for Supreme Court justices by doubling their retirement benefits upon reaching an appropriate retirement age or upon certifying a mental or physical disability. They also propose modest institutional reforms that will make the office of senior justice more attractive to justices considering retirement.

Abstract:
The first vacancy on the Supreme Court in eleven years has sparked renewed debate about the continued viability of life tenure for federal judges. Scholars have decried life tenure as one of the Framers' worst blunders, pointing to issues such as strategic retirement, longer average tenure, and widespread mental infirmity of justices. In this Article, the authors argue that, notwithstanding the serious problem of mental and physical infirmity on the Court, life tenure should be retained. They also argue that recent statutory proposals to eliminate or undermine life tenure, for example through a mandatory retirement age or term limits, are unconstitutional.

Surprisingly, scholars have failed to take a multidisciplinary approach to the question of life tenure, or to propose alternatives that address its weaknesses without abolishing it. The authors address that gap by adopting an incentives approach to Supreme Court retirement. They first demonstrate that, as an historical and empirical matter, pensions have been the most important factor in influencing the retirement timing of Supreme Court justices and comparable actors over history. Building on that track record, the authors propose that Congress create a golden parachute for Supreme Court justices by doubling their retirement benefits upon reaching an appropriate retirement age or upon certifying a mental or physical disability. They also propose modest institutional reforms that will make the office of senior justice more attractive to justices considering retirement.

Abstract:
This Review Essay explores the new politics of judicial appointments, which are characterized by lower-than-ever confirmation rates for nominees to the lower federal courts, historically unprecedented delay in confirming Article III judges at nearly every level of the judicial hierarchy, and confirmation hearings that reveal little meaningful information about the nominees. It does so through the lens of critiquing two new books relating to judicial appointments, Supreme Conflict by Jan Crawford Greenburg and Confirmation Wars by Benjamin Wittes. Though many scholars (and members of the popular media) have criticized the current appointments process and prescribed normative solutions to improve it, few, if any, have systematically attempted to identify the causes of the increasingly politicized appointments process.

This Essay fills that gap by analyzing the structural, external and judicial factors that have caused the growing politicization of the judicial appointments process. Structural factors, such as the passage of the Seventeenth Amendment and the proliferation of confirmation hearings for judicial nominees, have driven the Senate to take a more active role at the confirmation stage. External factors, such as the rise of organized interest groups and the mass media, have exerted pressure on the key players in the process, including Senators and the President, to act with a keen eye toward pleasing constituent groups and maintaining a consistent policy image. Finally, the Court's own ventures into contentious areas of social policy - such as school integration, abortion, and homosexual rights - have raised the stakes of confirmation battles. It is an understanding of the new politics of judicial appointments that will permit more probing scholarly inquiries into the normative and foundational questions about appointments on which legal scholars have been so intently focused over the past twenty years.

Supreme Court, judicial nominations, judicial appointments, nominees

Abstract:
Opposition to life tenure has been steadily mounting in the legal academy and Professors Steve Calabresi and Jim Lindgren are among those leading the charge. Crucial to their argument that life tenure is fundamentally flawed is an empirical claim that the increases in average tenure among Supreme Court Justices are both dramatic and unprecedented.

In this article, the authors respond to Calabresi and Lindgren by showing that their hypothesis of dramatic and unprecedented growth in average tenure has two fundamental flaws. First, it suffers from a period-selection problem. Rendering the data using longer or shorter periods blunts or eliminates the dramatic and unprecedented trend. Second, it suffers from a date-of-observation problem. Treating each Justice's tenure as an observation at date of swearing-in (or at the midpoint of a Justice's career), rather than at date of departure, eliminates the trend altogether. Instead, the authors show that, using an S-curve regression model, the most supportable hypothesis is that, despite short-term fluctuations, average tenure has been growing slowly and steadily over the long term, and we can expect more slow and steady growth in the future.

Supreme Court, life tenure, Justices

Abstract:
This Review Essay explores the new politics of judicial appointments by addressing the important question whether Senate-specific reforms to the judicial appointments process are likely to succeed. In his recent book, The Next Justice, Chris Eisgruber proposes a two-part plan to repair the Supreme Court appointments process. Like many other scholars that have written in the area, Eisgruber's reforms focus primarily on the Senate. First, he proposes that the Senate get smart by asking penetrating questions about the judicial philosophy of Supreme Court nominees in an effort to ensure that the future Justices are moderates, rather than extremists. Second, he proposes that the Senate get tough by standing up to the President and rejecting any nominee who does not prove to be moderate, or who fails to give satisfactory answers at the confirmation hearings.

In this Review Essay, the authors note several flaws in Eisgruber's proposals, many of which are applicable to other, similar reform proposals advanced by other scholars. First, Eisguber offers an incomplete diagnosis of the reasons behind the growing politicization of the appointments process, underestimating in particular the prominent role played by interest groups and the media in shaping the process. The political pressures on Senators make it unlikely that they can become tougher and more assertive in the process, either by adopting a more probing set of questions at confirmation hearings or by rejecting nominees in favor of judicial moderates.

Second, drawing on a rich political science literature, the authors demonstrate why a get tough strategy by the Senate in the judicial appointments process is likely to provoke a strong response from the President. Like many other scholars in the area, Eisgruber fails to address the myriad tools available to Presidents to deal with Senate resistance. The basic and most powerful tool for Presidents is the strategic selection of Supreme Court nominees, especially those with excellent qualifications, which can make it difficult for Senators to delay or reject those nominees. In the face of an obstructionist Senate, Presidents can also draw upon their substantial institutional strength by going public and touting the qualifications and attributes of the nominee, by making or threatening a recess appointment, and by employing ordinary legislative techniques like logrolling strategies and credible veto threats. Strategic employment of these tools makes it more difficult for Senators of all parties to obstruct Supreme Court nominees and helps to explain why the vast majority of such nominees during the past century have been confirmed by the Senate.

Judicial Appointments, Supreme Court, Justices, Veto Threats, Strategic Selection

Abstract:
This Review Essay critiques two recent books on the judicial appointments process, Supreme Conflict by Jan Crawford Greenburg and Confirmation Wars by Benjamin Wittes. As importantly, this piece explores the new politics of judicial appointments, which are characterized by lower-than-ever confirmation rates for nominees to the lower federal courts, historically unprecedented delay in confirming Article III judges at nearly every level of the judicial hierarchy, and confirmation hearings that reveal little meaningful information about the nominees.

This Review Essay then analyzes the structural, external and judicial factors that have caused the growing politicization of the judicial appointments process. Structural factors, such as the passage of the Seventeenth Amendment and the proliferation of confirmation hearings for judicial nominees, have driven the Senate to take a more active role at the confirmation stage. External factors, such as the rise of organized interest groups and the mass media, have exerted pressure on the key players in the process, including Senators and the President, to act with a keen eye toward pleasing constituent groups and maintaining a consistent policy image. Finally, the Court's own ventures into contentious areas of social policy - such as school integration, abortion, and homosexual rights - have raised the stakes of confirmation battles.

Without taking a normative stand on the appeal (or lack thereof) of the new politics of judicial appointments, this Review Essay concludes by examining the process from the point of view of the one actor that has largely been ignored by the academic literature - the President. While the Senate has used the filibuster aggressively against judicial nominees in recent years, Presidents possess several tools that can level the playing field. The tools explored in this piece include the elements of strategic selection, use of the bully pulpit or "going public" in favor of judicial nominees, and the possible exercise of the recess appointment power and veto threats.

Supreme Court, judicial nominations, judicial appointments, nominees

Abstract:
Despite serving more than sixteen years on the Supreme Court of the United States and authoring more than 300 opinions, Pierce Butler is one of the most overlooked Justices in American history. Relying on primary source documents housed at the Library of Congress, the University of Washington, the Carleton College archives, and the University of Minnesota archives, this Article is one of the first extensive treatments of Justice Butler in legal scholarship.

As part of a broader symposium on neglected Supreme Court Justices hosted by the Vanderbilt Law Review, this Article highlights four reasons why Butler has been ignored by scholars. First, Butler wrote in highly-technical areas of the law, such as public utilities regulation and tax law, which are of relatively low public salience and are consistently ignored by constitutional scholars who closely study the Supreme Court. Second, Butler's approach to opinion-writing stressed simplicity and minimalism, and it was rare indeed when he used rhetorical flourishes to argue a point. Third, Butler served with a highly-distinguished group of jurists and American historical figures, such as William Howard Taft, Benjamin Cardozo, Oliver Wendell Holmes, and Louis Brandeis, some of whom are consistently rated as the most successful Supreme Court Justices of all time. Finally, in those areas in which he wrote extensively, such as economic liberties, public utilities regulation, and taxation, he found himself on the wrong side of history. As a strict adherent to Lochner, for example, his opinions favoring property rights and economic liberties were essentially overruled by the end of his tenure on the Court.

This Article further challenges some of the fundamental assumptions about Justice Butler by offering a constitutional reassessment that challenges some of the traditional views about Butler's jurisprudence. In contrast to prior characterizations, Butler was hardly a monolithic conservative, as evidenced by his pro-defendant criminal rights and nuanced Fourteenth Amendment jurisprudence. Although this Article does not claim that Butler was one of the great Justices, it does point out that he is deeply understudied, likely underestimated, and regrettably misunderstood.

Pierce Butler, Supreme Court, Four Horsemen

Abstract:
The concept of life tenure for judges has been roundly criticized in the legal academy, with many scholars advocating a mandatory retirement age or term limits for justices. These command and control approaches, however, do not target the most important factors in the retirement decision. Empirical studies demonstrate that workload, income, and prestige are the paramount factors influencing judicial retirement. Using empirical evidence, this essay proposes a judicial retirement function that can be used to model the retirement decisions of justices and other judicial actors. Rather than constitutional amendment, the incentives approach to retirement suggests that Congress should focus its attention on making incremental institutional modifications, such as to pensions and workload, to encourage retirement.

Abstract:
More than a dozen hypotheses have been proposed to explain the startling decline in the Supreme Court's plenary docket, which has puzzled scholars and commentators. Using a unique dataset containing the votes of every Supreme Court Justice that served on the Court between 1986 and 1993, this paper develops support for the hypothesis that changes in the Court’s membership have contributed to the decline in the Supreme Court’s plenary docket. The data demonstrate that for every Justice appointed from the October 1986 Term through the October 1993 Term, the newly-appointed Justice voted to grant certiorari less often than his or her predecessor. In fact, the average Justice appointed between 1986 and 1993 voted to grant certiorari 46.2 fewer times per Term than his or her predecessor.

The substitution of Justice Ginsburg for Justice White had the greatest significance. Justice White voted to grant plenary review a prodigious 215.6 times per Term, on average, between 1986 and 1993. Meanwhile, Justice Ginsburg voted to grant plenary review during the October 1993 Term only 63 times, or 29.2% as often as her predecessor. The data and figures in this commentary demonstrate that personnel changes have had an effect on the decline in the Supreme Court’s plenary docket.

Supreme Court, plenary docket

Abstract:
As the Supreme Court of the United States faces a potentially defining moment in its history, with a new chief justice and additional retirements on the horizon, the Minnesota Law Review brought together thirteen leading scholars to discuss its future. This foreword introduces the collection of articles, which includes contributions from Professors Randy Barnett, Steven Calabresi (with David Presser), Neal Devins, Dan Farber, Michael Gerhart, Thomas Lee, Angela Onwauchi-Willig (with Guy Charles), Martin Redish (with Uma Amuluru), Stephen Smith, Kenneth Starr, David Stras, Mark Tushnet, and Adrian Vermuele.

Supreme Court, Institutional Reform, Future