This concludes our posts (here here here and here) summarizing our draft article, Judicial Duty and the Supreme Court’s Cult of Celebrity. Tonight or tomorrow, we’ll post responses to a few of the comments.
In the Judiciary Act of 1789, Congress included service on lower federal courts among the original duties of Supreme Court Justices. This was known as “circuit riding” because they had to ride around the country on horses or in carriages to sit as circuit judges. Notwithstanding the burden it placed on the Justices, circuit riding was not formally eliminated by Congress until the early twentieth century, and the time is ripe to bring it back.
Supreme Court Justices nearly escaped the burden of circuit riding as soon as it was placed on their shoulders. The Judiciary Act of 1801, pushed through by the outgoing Federalist Congress, eliminated the practice. Within a year, the Republicans repealed the 1801 act, in part as an act of partisanship, but also in part for a reason that would echo throughout the following decades: without circuit riding, it was said, Supreme Court Justices would be cut off from the political, cultural and, most importantly, legal life of the rest of the nation.
As the nation grew, and the federal judiciary’s docket swelled, the position of Supreme Court Justice soon became, in the words of Justice McKinley, “the most onerous and laborious of any in the United States.” Many Justices had to travel over one thousand miles each year—even before the advent of railroads—in addition to their responsibilities on the Supreme Court. Bills to curtail circuit riding arose practically every decade in the nineteenth century, only to be defeated again and again.
One nineteenth century Senator remarked that if relieved from circuit riding responsibilities, Supreme Court Justices would be “completely cloistered within the city of Washington, and their decisions, instead of emanating from enlarged and liberal minds, will assume a severe and local character.” Another worried that the Justices, insulated in the capital, would be subjected to “dangerous influences and strong temptations that might bias their minds and pollute the streams of national justice.” Both Senators—William Smith and Abner Lacock—deserve a place alongside Cassandra in the pantheon of vindicated prophets.
By the late nineteenth century, however, there were 1,800 cases on the Supreme Court’s docket and matters were languishing for years without resolution. After years of complaints from impatient litigants and the Justices themselves, the Evarts Act of 1891 created the modern courts of appeals (with new judgeships) and effectively eliminated circuit riding as a duty of Supreme Court Justices. The formal end came in 1911.
From a twenty-first century perspective, the significance of circuit riding during the first half of the republic’s existence is difficult to appreciate. Circuit riding made up a large part of the work of the Supreme Court well into the nineteenth century, and it remained a salient feature of the Justices’ role in the federal government even when circuit riding responsibilities waned in the post-Civil War years. Supreme Court Justices charged grand juries in New Hampshire, sentenced murderers in Louisiana, determined land claims in Kentucky, and enforced extradition orders in New York. By so doing, they remained connected to the lives of ordinary Americans, and saw first hand how the law operated in practice at the lowest levels of the federal system.
The nineteenth century practice of circuit riding was both a curse and a blessing for the Supreme Court and the American public it serves. Justices lost a lot of valuable time roaming the American countryside dispensing federal justice on a local, retail basis. Having been spared this obligation, however, the Court has become ever more isolated from the operations of the lower federal courts. The bottom line is that too much circuit riding can hamper the work of the Court and too little (or none) has tended to create an undesirable chasm between the mere mortals of the ordinary federal judiciary on one hand and Supreme Court Justices on the other.
Mindful of these competing concerns, we propose a modest restoration of circuit riding. Every year, the Justices of the Supreme Court would select by lot one of the 105 Article III jurisdictions (93 district courts plus 12 courts of appeals). Once a jurisdiction has been selected, it would be removed from the pool until all other jurisdictions have been selected. Over the course of the term, each Justice would coordinate with the Chief Judge of the chosen court to ensure that he performs no less than 5% of the average annual workload of a judge in that jurisdiction.
Some cases would carry over beyond a calendar year, and Justices would continue responsibility until the case’s completion. In all likelihood, then, the total circuit riding responsibilities of each Justice would exceed 5% of the workload of a typical district court or circuit judge. Even assuming it is double that, we should recall that Justices are now free to frolic around the world for three months of the year. Assigning them to work for half of that time would hardly constitute an intolerable burden.
Given technological developments, circuit riding would be far easier today than it was in centuries past. In fact, the Federal Court of Claims already exercises a national jurisdiction, and judges of that court frequently, and without substantial hardship, hold trials and settlement negotiations throughout the country. Adding circuit riding to the responsibilities of a Supreme Court Justice may give them fewer chances to conduct seminars abroad, but it would give them new opportunities to hold trials in Tuscaloosa and sit on panels in Topeka.
They would thus be forced to cope with many of the bread-and-butter issues that other federal judges confront daily. They would have the experience of being reversed on appeal, and of being out-voted on appellate panels by the same inferior judges who must usually obey their every command. Surely a salutary check on the hubris that naturally develops in people who are otherwise Supreme.
In addition, the Justices would be forced to internalize, at least to some small extent, the cost of ambiguous and airy Supreme Court decisions. No longer would Justices be completely free to announce a ruling and leave others to worry about how it works. It would be their problem, too, because they would sometimes have to act as judges obligated to apply the law in cases they are assigned to hear. The experience would do them good.
Reader says:
Speaking as an ordinary citizen, not a lawyer, I find this idea intrinsically appealing, and quite proper for a republic like ours. It’s similar to another view I hold, that university presidents should be required to teach one freshman course each year — some now do, but all should.
January 22, 2010, 3:45 pmSkyler says:
This is a much more useful recommendation than messing about with clerks.
January 22, 2010, 3:45 pmCVMe says:
I don’t know if I agree this would be helpful to the perceived problem, but I applaud the authors with coming up with suggestions that don’t require a constitutional amendment, unlike some commentators(cou-AMAR-gh cough).
January 22, 2010, 3:58 pmCOFC says:
Court of Federal Claims.
January 22, 2010, 4:00 pmtroll_dc2 says:
I agree that the justices often do not have enough knowledge of what happens in trial courts, but that is because most of them have not practiced in trial courts, and all but one of the current justices have never served as a trial judge. I supported Sotomayor in large part because she was a district judge for five years, giving her insight into how a lofty Supreme Court opinion has to be translated at the work-a-day level (and how it therefore should be crafted).
Rehnquist served as a trial judge for one case, and, if I recall, the Fourth Circuit reversed him! (For that matter, appeals courts are populated with judges who never served any time below; they could use some training there as well.)
January 22, 2010, 4:03 pmCharles Collins says:
How many recusals occurred in the past, because of a Supreme Court justice decision on a circuit case being appealed all the way? Just a question. I wonder how the other Justices would look at a case judged by a sitting colleague.
January 22, 2010, 4:12 pmSoronel Haetir says:
This is your one suggestion that I think has merit. Plus, while it differs markedly from modern practice, it has at least been tried previously in a reasonable manner. I would not say the same of anonymous opinions despite the fact that in the very early years of the republic it was the norm. I say that because Marshal changed both how the court works as well as how its work product is presented. I don’t think that early Court would please many people now. Look at Citizens United as a perfect example. People /expect/ the Supreme Court of the United States to make such rulings, even if they disagree about what the outcome should be.
I do see a few technical issues with this proposal, such as recusal if the case makes it to SCOTUS after one of the justices worked on it. Or even worse, two justices worked on it (perhapsone at the district and another at circuit level). Having a evenly divided Court is generally a pain. Perhaps an effort could be made to assign the justices to cases that are unlikely to reach the Court, although on the criminal side I’m not sure that would be a feasible task.
January 22, 2010, 4:17 pmAvatar says:
This argument would hold more weight if there were even one member of the current Supreme Court who was not a veteran of one of the various federal courts of appeal. The implication that the justices are somehow disconnected from the realities of the various federal circuits is, well… a little silly, and possibly insulting as well. It’s like going into a mechanics’ shop in Detroit and telling the mechanics in there that they would do a better job if they knew what it was like to work in a dealership, when every mechanic you were addressing had ten years of dealership experience (experience, it should be noted, that you don’t have yourself.)
January 22, 2010, 4:17 pmBama 1L says:
I was hoping this post would be on what bad judges the justices are. Inferior, indeed!
Seriously, I think one problem would be that the justices’ district and circuit court opinions would have inordinate weight. Take Twombley and Iqbal, which seem to impose new pleading standards that the district courts are having trouble figuring out how to implement. Now suppose Justice Kennedy, author of Iqbal, is doing his turn as a district court judge and makes a dismissal based on Iqbal. Isn’t that suddenly going to be regarded as something like Supreme Court precedent? Won’t the other courts suddenly start interpreting the pleading standards in line with Kennedy’s district court opinion? Who is going to reverse Kennedy-as-district-court-judge’s interpretation of Kennedy-as-Supreme-Court-Justice’s opinion? You’d think he’d have it right.
It gets worse if the circuit court does reverse Kennedy-as-district-court-judge. Iqbal was 5-4. Presumably Kennedy recuses himself. Assuming everybody else votes the way they did in Iqbal, it’s 4-4, tie goes to respondent, and the Court overrules both Kennedy-as-district-court-judge and Kennedy-as-Supreme-Court-Justice. Very weird result.
I guess you could get around this by requiring anonymity for all the justices’ output, including that incident to their duties helping out the lower courts, but that’s going to get absurd really fast.
January 22, 2010, 4:34 pmMartinned says:
Something similar happened, of course in Ex parte Merryman, where chief justice Taney sat as a circuit judge, hearing the case in first instance. (And as the only judge in that case.)
January 22, 2010, 4:46 pmCrunchy Frog says:
In what universe?
Pity the poor appellate judge who has the temerity to reverse, say Scalia, on appeal.
January 22, 2010, 4:55 pmwhiskey says:
(105 / 9) * .05 = 58.3%
January 22, 2010, 5:07 pmMartinned says:
[cough]Kozinski[cough]
January 22, 2010, 5:10 pmIt’s not like he’s not used to the punishment from on high…
Ak Mike says:
Interesting proposal, but I’m not sure it addresses what I think may be the real isolation issue. I’m less interested in how a given decision affects the lower courts, than how it impacts all of us. I’m concerned that throwing the justices into the lower courts will have them focus more on the lesser issue (how their decisions affect retail judging) to the detriment of the major issue (how their decisions affect society).
Supreme court justices do actually have a lot of interaction with other federal judges, as well as being themselves veterans of the lower courts. The three months a year that they are not in session could be valuable if they don’t use it just to hang out with other judges.
January 22, 2010, 5:13 pmjelisgito says:
I understand if the Justices were a little isolated from the legal landscape in California in 1800, but isn’t the dissemination of knowledge a little more advanced today?
Also, Justice O’Connor sometimes rides circuit. Has she spoken about the issue?
January 22, 2010, 5:18 pmEvilDave says:
Pah, many would reverse simply because it was Scalia, not based on any merits of the case.
January 22, 2010, 5:21 pmruuffles says:
Also, Justice O’Connor sometimes rides circuit. Has she spoken about the issue?
January 22, 2010, 6:07 pmDunstan says:
“Pity the poor appellate judge who has the temerity to reverse, say Scalia, on appeal.”
I expect the 9th Circuit would rather enjoy it. Turnabout is fair play, and all that.
January 22, 2010, 6:31 pmmethodact says:
That begs the question, is the United States in receivership?
The global bankers have long pressured big money loans to 3rd world nations under impossible terms in order to gobble up their infrastructures for the global bankers’ corporate cronies, under the rubric of “privatization”. The corporate cronies have the singular unlikely distinction of being “too big to fail”. (This can be traced to such remarkable social-Darwinian advantages as being able to socialize risks and privatize profits and to borrow money at zero to one percent interest where everyone else pays higher rates, so that with the magic of compound returns, they thrive massively and for that very same reason, eventually everyone else has to fail).
Should government be free to censor corporate media, you ask? Surprise!!! The White House runs propaganda out of corporate media, despite warnings of illegality by the GAO.
From Wikipedia: [E]arly TV mogul, Lew Grade, likened the broadcasting licence as being a “licence to print money”.
All the while, our money moguls talk of rehabilitating Bernanke for a second term.
January 22, 2010, 6:35 pmAn American says:
None, as far as I’m aware – but that was because they didn’t care about it. Justice Davis, who wrote the opinion of the court in Ex parte Milligan, had also judged the case at the circuit court level – and, if I remember correctly, he was a close friend of one of the lawyers!
And let’s not forget that Marshall was Adams’ secretary of state; it was his negligence (in forgetting to deliver Marbury’s commission) that led to Marbury v. Madison…
Well, at least whatever bias they had was for the right side. I wouldn’t choose to have either of those opinions reversed.
January 22, 2010, 6:35 pmguy in the veal calf office says:
I like the proposals for the reasons you cite and one more. The administration of high justice would be an attraction in the local districts, adults and kids would pay attention, local media would cover it, and by that exercises civics would be learned and teh justices subject to previously uneard (by them) criticism and analysis; its true that they have been “completely cloistered within the city of Washington, and their decisions, instead of emanating from enlarged and liberal minds, will assume a severe and local character.”
(I enjoy the old stories of judges riding circuit coming into a town, holding trials out in a field with the populace picnicking,and fending off hecklers and shouted advice. Like a sports event except with serious, important lessons and participatory justice. I was disgusted by the spectacle when I watched the Supreme Court set high above us citizens by its privileges, titles and rules. The fact that I couldn’t take notes, or just ignore them by reading a newspaper, irritated me. They’d do a better job if they were subject to the circuit and rollicking crowds).
January 22, 2010, 6:42 pmMalvolio says:
Such a judge I would admire for his fortitude and intrepidity, though not for his temperament.
January 22, 2010, 11:09 pmChris Travers says:
This is the best recommendation you folks have made so far. I think it is always true that having management if you will also work the floor means that they have a better idea of their own role.
January 23, 2010, 12:09 amAJK says:
I don’t think there’s any question that this is the best of your recommendations. I’d strongly recommend leading with it when you present these proposals in the future.
January 23, 2010, 2:11 amThe Volokh Conspiracy » Blog Archive » Supreme Court Justices as … - The best HOT news! Blogs, Videos, News. - BEST News! says:
[...] Continue reading here: The Volokh Conspiracy » Blog Archive » Supreme Court Justices as … [...]
January 23, 2010, 6:00 amChris says:
There are actually 13 courts of appeals (1st through 11th circuits, DC circuit, and federal circuit). Which one did you forget?
January 23, 2010, 9:12 amSoronel Haetir says:
Other special cases too, such as the United States Court of Appeals for the Armed Forces.
January 23, 2010, 10:19 amdrunkdriver says:
He used to joke about that! He seems to have been quite a character, with a sense of humor about himself. In fairness though, most people think he did a pretty good job at the Clinton impeachment trial.
January 23, 2010, 2:37 pmJM Hanes says:
As I understand your thesis, Supreme Court Justices are a collection of feckless, lazy, out-of-touch, status seekers, who arrogantly insist on hiring staff to assist them as they see fit.
I gather this disastrous state of affairs is to be remedied by:
** Consigning the Justices to the anonymity their hubris so richly deserves,
** Dividing their time in arbitrarily equal parts between cases they think worth hearing and cases they don’t,
** Eliminating the diffuse, patently pernicious influence of law clerks, by subordinating them to a single, presumably uncelebrated, Court Librarian empowered to set the Court’s agenda,
** Reducing vacation time and requiring the Justices to meddle in lower court operations and cases of indeterminate length, where they will hopefully suffer the humiliation of reversals by their own anonymous colleagues,
** All of which will probably, and properly, humble the Justices’ ambitions, force them to earn their keep, open their eyes, if not their hearts, and imbue them with respect for everyday judicial travails. This will ultimately result in more coherent, consistent, useful opinions, and will obviously have a salutary effect on the systematic efficiency of the Judicial Branch.
Perhaps in your extended article you make a more substantive case for the ostensible problem, the ostensible causes and the ostensible effects of the reforms you propose here. Your assumption that clerks are picking cases and writing opinions for idle Justices doesn’t seem to accord with the kind of judicial grandstanding you assert and deplore. Moving responsibility for such determinations to the Librarian, while expanding the managerial functions of the Justices, strikes me as a rather bizarre role reversal!
As a practical matter, rewriting job descriptions in DC, as you suggest, looks far more likely to engender chaos in the lower courts and beyond. I would challenge you to plug your recommendations into an organizational chart, and wish you luck negotiating the crisscrossing lines of authorities and jurisdictions which your reconceived operations represent.
Ironically, out here in the uninsulated world, the fact that you choose to sign your names to your opinions has no bearing on the validity of your critique, and the fact that I choose to put my name to this opinion actually signals my sense of responsibility for its contents.
January 23, 2010, 4:07 pmmethodact says:
More thoughts on anonymous opinions:
January 23, 2010, 8:16 pmJM Hanes says:
I cross posted my comment above in the “Readers” thread.
January 23, 2010, 8:57 pmDavid Barnett says:
This wouldn’t be the first time I was confused, but how did the Republicans do that within a year of 1801? The party was founded in 1854.
January 25, 2010, 2:02 pm“Reverse Circuit-Riding” and Justices By Designation: A New Approach to the Supreme Court « The View From LL2 says:
[...] that proposed some radical reforms to the Supreme Court. One of the proposed reforms involved reinstating “circuit-riding,” the practice of having Justices sit on a certain number of federal trials in District Courts [...]
February 1, 2010, 5:31 pm