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Tuesday, May 31, 2005

It's the Circuit Courts that Matter

We still pay a lot of attention to the Supreme Court, despite the fact that it hears only 80 cases a year, of which only a small fraction are controversial and effectuate a significant legal change.  At the federal level, the courts with the most significant power are the circuit courts.  Consider this from a recent Knight-Ridder article:

The Supreme Court under Chief Justice William H. Rehnquist has been intervening in only about 80 cases each year, down from about 150 a year two decades ago, leaving tens of thousands to be decided by appeals courts that are increasingly shaping the nation's laws.

"The appeals courts are critical decision-making bodies on a range of issues," said Thomas Mann, a senior fellow at the Brookings Institution. "As the Supreme Court takes fewer and fewer cases, the appeals courts are more frequently having final say. Both sides know this, so it forms the backdrop for the entire fight."

Also in the background, experts say, is the overwhelming Republican dominance of the appeals courts, thanks to five Republican presidencies over the past three decades versus two Democratic ones. Republican-appointed judges now hold majorities on 10 of the 13 appeals courts, and the pace of appointments is accelerating as new seats are created and other judges retire. In five years in office, for example, President Bush has managed to appoint a majority of the judges who now sit on the 8th Circuit Court of Appeals in St. Louis.

With a potential appointment looming, most eyes are on the Supreme Court.  But the circuit courts, by and large, have the de facto final say for most cases and legal issues.   And as the article points out, Republican-appointed judges are in the majority in 10 out of 13 circuit courts. 

As the judiciary grows more conservative, I wonder whether liberal and conservative scholars will retool their positions on judicial review or the role of the courts.  Inspired by the Warren Court, liberals sought to justify robust judicial review.  Conservatives pushed for judicial restraint and attacked the legitimacy of judicial review.  (These are broad generalizations of course.)  But the courts have a very different complexion today, and I wonder whether liberal and conservative positions on judicial review will start to shift soon. 

Posted by Daniel Solove on May 31, 2005 at 12:43 PM in Daniel Solove, Law and Politics | Permalink


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Tracked on May 31, 2005 5:07:18 PM


Soon? It was in 1999 that Mark Tushnet wrote his book Taking the Constitution Away from the Courts. He's not the only liberal who has argued that judicial review should be scaled back (see also Larry Kramer's work, etc.). Here are a couple of articles.

Posted by: Stuart Buck | May 31, 2005 2:41:39 PM


Historically, you are correct, as many of the most liberal Supreme Court justices were appointed by Republican presidents: Warren, Brennan, and Blackmun for example.

But I think that after Souter, the Republicans have been attempting to be more careful about vetting for ideology in selecting judges. The process of appointing judges is becoming much more politicized. It used to be more of a system of favors to friends. This aspect of it still perseveres, but I believe the process is more ideological now than it ever was before.

So yes, it is quite true that all Republican appointees are not strong conservatives. I clerked for Judge Sporkin (D.D.C.), who was appointed by President Reagan, but who routinely was labeled by conservatives as an "activist judge" for his Warren Court style of judging. But I think that this is changing. Of course, there's always a possibility of folks like Warren, Brennan, or Blackmun being appointed by Republicans, but I wouldn't bet on it today. I also wouldn't bet on the appointment of a Souter today either.

Posted by: Daniel Solove | May 31, 2005 2:03:11 PM

On an aspirational note, I hope that the liberal ideology does not retool itself in the wake of the judiciary's more heavily conservative tone. From a standpoint of ideals, the liberals need to stand for something besides what they want. Similarly to Kaimi's statement, while there are politically conservative appointees, many of them are more devoted to the rule of law than to a conservative dogma.

By way of example and as futher illustration of Kaimi's point: One of the appointees from last term for a district court judge was heavily opposed by various groups for reasons including very conservative statements made to the media 20 years ago. Now, I know this man (now Judge) and his family, and while I disagree with him on many things he is a man of great integrity. He would respect the rule of law above and beyond his personal beliefs. He was, as noted above, confirmed by the Senate with the 2 Democratic Senators from the State voting in favor of his appointment.

Posted by: Joel | May 31, 2005 1:57:49 PM

I agree on the importance of circuit courts. Let me register a partial dissent on the implied endorsement of Sunstein's (and others') arguments that "Republican appointee = conservative." I think there's a lot more to the equation than just that.

After all, you cite approvingly to the Warren court -- and Warren was a Republican appointee. You may agree with most liberals that Roe v. Wade protects an important right -- and that decision was authored by a Republican appointee. The pattern continues, with cases like Lawrence and Newdow.

I can sympathize with opposition to some of Bush's nominations. I'm not a conservative myself.

But I don't think that liberals do themselves a favor when they buy into the idea that all Republican appointees are hardline conservatives. (See, e.g., Alliance for Justice statement that circuit courts with more Republican than Democrat appointees are all "controlled by the far right.") The idea that all Republican appointees are strong conservatives is demonstrably untrue.

Posted by: Kaimi | May 31, 2005 1:15:28 PM

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