Monday, October 21, 2013

Issues and Readings on the Recent History of the Federal Judiciary

[Recently, Edward A. Purcell, Jr., the Joseph Solomon Distinguished Professor of Law at the New York Law School, had occasion to comment on the issues that have been particularly significant in the recent history of the federal judiciary and suggest some readings thereon.  I thought his remarks deserve a wider audience; at my suggestion and with his kind permission they appear here.  I should note that among Professor Purcell’s many publications are Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (Yale University Press, 2000); Litigation & Inequality: Federal Diversity Jurisdiction in Industrial America, 1870–1958 (Oxford University Press, 1992); “Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts.” 24 Law & Social Inquiry 679–750 (1999); and The Crisis of Democratic Theory: Scientific Naturalism & the Problem of Value (University Press of Kentucky, 1973).]

In my view the most important developments relating to “caseloads, court administration, and judicial nominations” in the federal courts over the past forty years or so are social, political, and ideological.

This is not, of course, to say that such “real world” factors as rising caseloads, changing legal issues and social conditions, and the increasingly important impact of a globalized economy have not created many significant institutional and technical problems for the federal courts, for they surely have.  Such developments as case management, control of discovery, continued expansion of non-Article III courts, use of alternate dispute resolution forms, etc. are of great importance.  However, the ways in which those developments have been conceived and addressed are ultimately reflective of broader political, social, and ideological pressures.  The history of the federal courts and the developing “law” of the federal courts has always been a history of American politics and governance writ small.  Although political and ideological pressures changed in their resonance, shifted in their focus, and sharpened or moderated as the nation’s animating conflicts changed, the history of the federal courts remained throughout a key and often critical subcategory of the general history of American political and intellectual history.

In my view, the impact of politics and a massive shift in the nature, popularity, and salience of ideological assumptions are central factors that have shaped the ways that the federal courts and their law have been remolded to meet “real world” challenges over the past forty years or so.  One could easily take as one’s text a statement that would, by now, seem irrefutable.  “[I]deology influences judicial decisions at all levels of the federal judiciary.”  Lee Epstein, William M. Landes, and Richard A. Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (2013), 385.

Thus, for me, the organizing principle for efforts to assess the history of the federal courts over the past decades should not focus on technical, docket, or general institutional issues but rather on the political context that has shaped the ways in which those technical, docket, and general institutional issues were conceived, interpreted, and addressed (or not).

Enough generalities.  I think that some of the most relevant issues and sources for such a history would include the following.

On the “conservative” ascendency and relevant changes in the Republican Party over the past half century:  Steven M. Teles, The Rise of the Conservative Legal Movement (2008); Donald T. Critchlow, The Conservative Ascendancy:  How the GOP Right Made Political History (2007); Joseph Crespino, Strom Thurmond’s America (2012); Robert O. Self, All in the Family: The Realignment of American Democracy Since the 1960s (2012); Geoffrey Kabaservice, Rule and Ruin: The Downfall of Moderation and the Destruction of the Republican Party from Eisenhower to the Tea Party (2012); Joseph Crespino, In Search of Another Country (2009); Robert O. Self, American Babylon (2005).

On changes in the appointment process, Lee Epstein and Jeffrey A. Segal, Advice and Consent: The Politics of Judicial Appointments (2005); Nancy Scherer, Scoring Points: Politicians, Activists, and the Lower Federal Court Appointment Process (2005); Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton (rev. ed. 1999); James F. Simon, In His Own Image: The Supreme Court in Richard Nixon’s America (1973); Lee Epstein, Jeffrey A. Segal & Chad Westerland, “The Increasing Importance of Ideology in the Nomination and Confirmation of Supreme Court Justices,” 56 Drake L. Rev. 609 (2008); Lee Epstein, Jeffrey A. Segal, Nancy Staudt, and Rene Lindstadt, “Symposium:  Empirical Measures of Judicial Performance: The Role of Qualifications in the Confirmation of Nominees to the U.S. Supreme Court,” 32 Fla. St. U. L. Rev. 1145 (2005).

On the contemporary Supreme Court’s sympathy for business, William  Haltom  & Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis (2004); Sheryl Gay Stolberg, “Pugnacious Builder of the Business Lobby,” New York Times, June 2, 2013, Sec. Bu 1; Theodore Eisenberg, “The U.S. Chamber of Commerce Liability Survey: Inaccurate, Unfair, and Bad for Business,” 6 J. Empirical Legal Stud. 969 (2009).

On the impact of wealth inequality on governmental policy, Larry M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age (2008); Jacob S. Hacker & Paul Pierson, Winner-Take-All Politics: How Washington Made the Rich Richer–And Turned Its Back on the Middle Class (2010); Jacob S. Hacker, The Great Risk Shift: The New Economic Insecurity and the Decline of the American Dream (2008).  For the disproportionate political influence of wealth and its success in securing favorable public policies, see Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America (2012); Benjamin I. Page, Larry M. Bartels, and Jason Seawright, “Democracy and the Policy Preferences of Wealthy Americans,” 11 Perspectives on Politics 51 (2013).

I would also note a symposium to be held at the University of Pennsylvania Law School next month commemorating the seventy-fifth anniversary of the Federal Rules of Civil Procedure.  There will be a number papers, which will be published in the University of Pennsylvania Law Review sometime next spring, addressing precisely the issue of what has happened in, and happened to, the federal courts since 1938.  Several (one, I must confess, by me) that will focus on changes over the past 30 years or so and the role of politics and ideology in shaping those changes.  Some of these papers will attempt to merge the technical with the political and social in ways that illuminate the law and history of the federal courts.