How To Rig the Federal Courts
DAVID S. LAW*
The organizational structure of a judicial system has systematic implications
for the ideological slant of judicial policymaking. These implications are,
however, rarely discussed and poorly understood. This Article uses the prospect
of court-rigging to illustrate both the impact of institutional design on judicial
policymaking and the perils of taking institutional design for granted.
Political leaders often pursue a form of entrenchment by attempting to imbue
the courts with an enduring ideological bias. But the most familiar strategies
for achieving this type of entrenchment—namely, court-packing and gerrymandering—are doomed to enjoy only limited success in the context of the Federal
Judiciary. Comparative analysis of the judiciary’s organizational structure, by
contrast, highlights the existence of design vulnerabilities that could be exploited to greater effect. Examination of the Japanese judiciary in particular
suggests that a more effective strategy would be to restructure the federal courts
by delegating power over sensitive policy and personnel decisions to ideologically reliable, self-replicating agents who are insulated from the effects of
regime change.
Unlike conventional court-packing strategies, this approach can be implemented in ways that are not merely consistent with the requirements of Article
III, but that actually exploit those very requirements for even greater effect.
Specific implementation mechanisms discussed in this Article include the creation of a new intermediate appellate court with the ability to select its own
members; the introduction of procedural rules that would effectively restrict the
Supreme Court’s appellate docket; and a comprehensive overhaul of the law
clerk system that would forge the clerks into a collective body, establish their
independence from the judges whom they nominally serve, and subject them to a
combination of bureaucratic supervision and oversight by the legal academy.
TABLE OF CONTENTS
INTRODUCTION: IN SEARCH OF POLITICAL IMMORTALITY . . . . . . . . . . . . . .
781
* Professor of Law and Professor of Political Science, Washington University in St. Louis; Visiting
Scholar, New York University School of Law. © 2011, David S. Law. B.A., M.A., Ph.D., Stanford
University; J.D., Harvard Law School; B.C.L. in European and Comparative Law, University of
Oxford. Earlier versions of this Article were presented at the 2010 annual meetings of the Western
Political Science Association and Midwest Political Science Association, a law and political economy
colloquium at Northwestern University School of Law, and law faculty colloquia at Michigan State
University and Washington University. Many thanks to Scott Baker, Steve Burbank, Lee Epstein,
Richard Fallon, Josh Fischman, David Fontana, Susan Franck, Pauline Kim, Ron Krotoszynski, Ron
Levin, Alex Marthews, Mike Ramsey, Jim Spriggs, Brian Tamanaha, Emerson Tiller, Albert Yoon, and
David Zaring, for their comments and expertise; Dana Buckman, for tireless research assistance; and
Larry Solum, for sowing the seeds of mischief. The usual disclaimer that those gratefully acknowledged
are not to blame for what follows applies with greater than usual force.
779
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I. A PRACTICAL EVALUATION OF CONVENTIONAL ENTRENCHMENT
STRATEGIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
THE IDEA OF CONSTITUTIONAL DESIGN SPACE
...............
B.
THE LIMITATIONS OF COURT-PACKING STRATEGIES
C.
THE LIMITATIONS OF GERRYMANDERING STRATEGIES
785
785
...........
787
.........
789
II. TWO CHARACTERISTICS OF POLICYMAKING INSTITUTIONS: POLITICAL
RESPONSIVENESS AND POLICY STABILITY . . . . . . . . . . . . . . . . . . . .
790
III. A COMPARATIVE ANALYSIS OF THE IMPACT OF INSTITUTIONAL DESIGN
ON JUDICIAL BEHAVIOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
793
A.
B.
.......
795
1.
The Overall Structure of the Judiciary . . . . . . . . . . . . . .
796
2.
Administrative Control of Personnel Matters . . . . . . . . .
798
3.
Administrative Control of the Law Clerk System . . . . . .
800
4.
The Self-Selection of Senior Judges . . . . . . . . . . . . . . .
803
THE INSTITUTIONAL DESIGN OF THE JAPANESE JUDICIARY
THE LESSONS AND CONSEQUENCES OF INSTITUTIONAL DESIGN IN
........................
804
IV. THE CREATION OF A NATIONAL COURT OF APPEALS . . . . . . . . . . . . .
807
JAPAN AND THE UNITED STATES
A.
1.
2.
B.
...........
808
Appeal Certification by a New National Court of
Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
808
Introduction of a “Rule of More than Four” . . . . . . . . . .
810
HOW TO BREAK THE GRIP OF THE SUPREME COURT
HOW TO ENTRENCH AN IDEOLOGICAL BIAS IN THE NEWLY CREATED
........................................
814
1.
Delegation to a Merit Commission . . . . . . . . . . . . . . . .
815
2.
Delegation to the Judiciary . . . . . . . . . . . . . . . . . . . . . .
818
3.
Judicial Self-Replication . . . . . . . . . . . . . . . . . . . . . . .
822
V. REFORM OF THE LAW CLERK SYSTEM . . . . . . . . . . . . . . . . . . . . . .
824
COURT
A.
SELECTION OF LAW CLERKS
..........................
826
B.
CONTROL OF LAW CLERKS
...........................
830
CONCLUSION: THE POLICY BIAS OF ORGANIZATIONAL STRUCTURE . . . . . . .
833
2011]
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INTRODUCTION: IN SEARCH OF POLITICAL IMMORTALITY
Governments and leaders may dream of leaving enduring legacies, but in
politics, nothing lasts forever. The same electoral tide that sweeps a party to
power can just as quickly drag it mercilessly out to sea. Mindful of their
political mortality, elected officials have predictably sought to extend their reach
into the future by appointing federal judges who, assured of life tenure by
Article III,1 may be relied upon to shape policy for years to come.2 Yet
opportunities to transform the courts arrive both too infrequently and too
regularly. On the one hand, there is no guarantee that the chance to remake the
ideological balance of the Supreme Court with a pivotal appointment will arise
before time runs out.3 On the other hand, there is little to stop future governments from reversing what is done today. As an empirical matter, federal judges
come and go in such numbers and with such regularity that nearly every
president over the last century has managed before leaving office to ensure that
his own party’s appointees constitute a majority of the bench.4 There is,
moreover, nothing in the Constitution to prevent the pendulum from swinging
back and forth to such an extent. Article III guarantees life tenure, not eternal
life.
Is it part of the genius of American constitutionalism that the Federal
Judiciary defies both immediate takeover and long-term entrenchment? Or is it
possible for political victors to seize control of the Judiciary quickly and turn it
1. U.S. CONST. art. III, § 1 (“The Judges, both of the supreme and inferior Courts, shall hold their
Offices during good Behaviour[.]”).
2. In some cases, for many years indeed. See A.G. Sulzberger, At 103, Oldest Federal Judge Has
One Caveat: No Lengthy Trials, N.Y. TIMES, Sept. 17, 2010, at A1 (noting that, at the age of 103, U.S.
District Court Judge Wesley E. Brown still remains months shy of becoming “the oldest practicing
federal judge in the history of the United States”).
3. See, e.g., Keith Krehbiel, Supreme Court Appointments as a Move-the-Median Game, 51 AM. J.
POL. SCI. 231, 233–38 (2007); Andrew D. Martin et al., The Median Justice on the United States
Supreme Court, 83 N.C. L. REV. 1275, 1276–1300 (2005) (explaining why, from a theoretical
perspective, the “median Justice” holds such sway over policy outcomes, and discussing various
methods for identifying the median Justice); David W. Rohde & Kenneth A. Shepsle, Advising and
Consenting in the 60-Vote Senate: Strategic Appointments to the Supreme Court, 69 J. POL. 664, 666–72
(2007) (modeling the heightened conflict that surrounds Senate confirmation of pivotal Justices); Peter
H. Lemieux & Charles H. Stewart, III, A Theory of Supreme Court Nominations 3, 18–21 (Jan. 1991)
(unpublished manuscript), http://hdl.handle.net/1721.1/18151 (last visited Feb. 11, 2011) (explaining
why, in most cases, appointment of a single Justice will have “only a marginal influence over policies in
the near term”).
4. Grover Cleveland and Richard Nixon are the only presidents since 1869 to have fallen short of
this feat. See DEBORAH J. BARROW ET AL., THE FEDERAL JUDICIARY AND INSTITUTIONAL CHANGE 23 (1996)
(noting that Cleveland, a Democrat, failed “in an extraordinarily Republican-dominated era,” and that
Nixon “came within a percentage point” notwithstanding the Watergate debacle); Robert A. Carp et al.,
Right On: The Decision-Making Behavior of George W. Bush’s Judicial Appointees, 92 JUDICATURE 312,
315–16 (2009) (describing the impact of Presidents Clinton and George W. Bush on the overall mix of
appointees on the federal bench, and noting that 51% of all federal judges had been appointed by
Democratic presidents by the time Clinton left office); infra text accompanying notes 33–36 (describing
the extent of the partisan transformations of the Federal Judiciary that occurred under Presidents
Clinton and George W. Bush).
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into an ideological stronghold capable of enduring for years? Imagine the
following scenario. In the space of a single election, the Democratic Party
wrests from the Republican Party control of not only the White House, but also
both houses of Congress. Indeed, its margin of victory is so great that it secures
the extraordinarily rare prize of a filibuster-proof majority.5 The result is a rare
and tumultuous moment in American politics, ripe with potential conflict between the courts and the elected branches: one could liken it to, say, the
Jeffersonian takeover from the Federalists in 1801,6 or the Democratic takeover
from the Republicans in 2009.7
Suppose further that, at this hypothetical moment, this newly elected supermajority possesses both the unity and the determination to reshape the Federal
Judiciary, which years of prior conservative rule have tilted considerably to the
right. It is a foregone conclusion, however, that the wheel will turn again, and
that the Democrats will at some point in the future—perhaps sooner than
later—lose the upper hand. How, then, might they most fully exploit this
temporary window of opportunity? What is the most effective way for a
political supermajority to translate momentary political ascendency into lasting
influence on the bench?
If its goal were simply to reverse whatever entrenchment the previous regime
was able to accomplish, this hypothetical supermajority might be content
simply to employ the same conventional strategies as its predecessors. That is to
say, it would most likely attempt to shape the composition of the federal bench
by appointing replacement judges, adding new judgeships, and creating enticements for existing judges to retire. If it is feeling particularly adventuresome,
the new government might even attempt to reform the appointments process
itself so as to prevent individual opposition senators from obstructing particular
nominees,8 or it might urge some form of mandatory retirement for existing
members of the Court so as to give itself more vacancies to fill.9
5. On only three occasions over the course of the entire twentieth century did either party possess a
nominally filibuster-proof majority in the Senate. On all three occasions, it was the Democratic Party
that enjoyed the requisite number of votes. David S. Law, Appointing Federal Judges: The President,
the Senate, and the Prisoner’s Dilemma, 26 CARDOZO L. REV. 479, 512 & n.163 (2005). Moreover, even
on those rare occasions, the power of the Democratic majority in the Senate was never as fearsome in
practice as the numbers alone would have suggested, resting as it did upon the support of a number of
conservative southerners. See id. at 512 & n.163.
6. See GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789–1815, at
408–42 (2009) (discussing the origins and scope of the conflict that erupted immediately between the
newly elected Jeffersonian Republicans and the holdover Federalist Judiciary).
7. See Gary C. Jacobson, The 2008 Presidential and Congressional Elections: Anti-Bush Referendum and Prospects for the Democratic Majority, 124 POL. SCI. Q. 1, 1–6 (2009) (characterizing the
2008 federal elections as a referendum on, and resounding rejection of, the outgoing George W. Bush
Administration, and describing the magnitude of the resulting Democratic supermajority).
8. See Law, supra note 5, at 493–96 (discussing the recurring political conflict over the scope of
senatorial courtesy and the “blue slip” practice, under which individual senators supposedly enjoy the
power to thwart consideration of judicial nominees from their home states).
9. See, e.g., Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure
Reconsidered, 29 HARV. J.L. & PUB. POL’Y 769, 824–54 (2006) (proposing eighteen-year term limits for
2011]
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Efforts to achieve entrenchment via such conventional tactics are both difficult to disguise and, in the long run, doomed to fail. It takes no great legal or
political sophistication to grasp that the ability to select judges is the power to
shape the behavior of the courts. Strategies aimed at securing the appointment
of specific judges, altering the number of judgeships, or adjusting the judicial
selection process itself to partisan advantage can be expected to arouse opposition precisely because the intent and effect of such strategies are so obvious.
The fact that the term “court-packing” is a part of the historical and political
lexicon merely underlines the ease with which appointments-based strategies
can be grasped by the general public and targeted by political opponents.10
Perhaps the biggest failure of conventional strategies for influencing judicial
decisionmaking, however, is that they do nothing to alter the institutional
framework within which judges operate. In other words, they take for granted
the rules of the game that judges play. By contrast, an institutional strategy
aimed at altering this framework is potentially fast, cheap, effective, and lasting.
It need not depend upon the time-consuming replacement of existing judges in
order for its effects to be felt. It can be executed at little cost via the reconfiguration of existing actors and resources. And it can be made to fit, and even exploit,
the existing constitutional framework. Rather than engage in an unending,
Sisyphean struggle to change the ideological complexion of the judiciary incrementally by fighting and bargaining over individual judgeships, the ruling party
might seek to engineer an institutional structure that favors a particular bias and
exhibits strongly inertial tendencies. Once in place, such a structure continues to
yield dividends unless the opposition can somehow muster the necessary supermajority to enact its own structural reforms.
Court-rigging is possible in theory because the organizational structure of a
given judicial system has systematic implications for judicial policymaking.
These implications, however, are rarely discussed and poorly understood. The
most graphic way to illustrate the impact of institutional design on judicial
policymaking is to perform a decidedly Machiavellian thought experiment:
how might one rig the federal courts? Comparative analysis of the internal
organization of the Article III Judiciary highlights design vulnerabilities that a
temporary political supermajority could exploit to entrench a relatively durable,
Supreme Court Justices); Roger C. Cramton, Reforming the Supreme Court, 95 CALIF. L. REV. 1313,
1323–34 (2007) (arguing that service on the Supreme Court should be limited, either on a de facto basis
by statutory reform, or by outright constitutional amendment); Vicki C. Jackson, Packages of Judicial
Independence: The Selection and Tenure of Article III Judges, 95 GEO. L.J. 965, 997–1006 (2007)
(reviewing recent proposals to amend the Senate’s voting rules with respect to judicial nominations and
to introduce mandatory retirement for members of the Supreme Court).
10. See, e.g., KEITH E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY: THE PRESIDENCY,
THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN U.S. HISTORY 268 (2007) (emphasizing the
breadth of opposition to Franklin Roosevelt’s much maligned Court-packing plan); Barry Friedman,
The History of the Countermajoritarian Difficulty, Part Four: Law’s Politics, 148 U. PA. L. REV. 971,
987, 1028–31, 1037–46 (2000) (discussing how opposition to Roosevelt’s Court-packing plan extended
even to those who opposed the Court’s obstruction of the New Deal).
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self-sustaining ideological bias.
Several caveats are in order. First, no claim is made that this strategy ought to
be adopted as a normative matter. Unlike most scholarly proposals to alter the
organizational structure of the judiciary, the institutional design strategy described here does not purport in any way to promote judicial merit,11 reduce the
likelihood of judicial error,12 dampen the impact of ideology on adjudication,13
or otherwise make the world a better place. There is a sharp difference between
explaining what makes an ideological entrenchment strategy effective, on the
one hand, and advocating the adoption of such a strategy, on the other. Second,
the focus of this Article is not upon what kind of strategy might be politically
feasible to enact at any given point in time, but rather upon what institutional
characteristics, in what combination, would have a particular effect on judicial
decisionmaking. None of the arguments in this Article about the policy consequences of competing institutional arrangements hinge on the question of
political feasibility. Finally, no importance should be placed upon the fact that
the hypothetical scenario described here happens to assume a goal of liberal as
opposed to conservative judicial entrenchment. Institutional design is faithful to
no master, and the strategy described here is one that could easily be turned by
conservatives against liberals. Some elements of the strategy would, in fact, be
easier for conservatives than for liberals to implement.14 Others would need to
be modified before they could be put to work for conservatives,15 but the
appropriate modifications could be made without great difficulty.16
Part I of this Article first describes the institutional framework within which
any ideological entrenchment strategy must operate. Conventional entrenchment strategies such as court-packing and gerrymandering not only fail to
exploit the constitutionally fixed characteristics of this framework, but also are
undermined by them. Part II lays the theoretical groundwork for a different kind
of strategy by setting forth a typology of policymaking institutions and identifying the institutional characteristics that govern the extent of ideological entrenchment. Those characteristics are political responsiveness, or the degree to which
an institution is responsive to changes in its political environment, and policy
11. See Stephen Choi & Mitu Gulati, A Tournament of Judges?, 92 CALIF. L. REV. 299 (2004)
(proposing that Supreme Court vacancies be filled on the basis of an objectively scored competition
among circuit court judges).
12. See I.J. Good & Gordon Tullock, Judicial Errors and a Proposal for Reform, 13 J. LEGAL STUD.
289, 294–97 (1984) (arguing that the denial of precedential effect to closely divided appellate decisions
would reduce the probability of legal error).
13. See Emerson H. Tiller & Frank B. Cross, A Modest Proposal for Improving American Justice, 99
COLUM. L. REV. 215 (1999) (proposing that federal appeals court panels be required to include
appointees of both parties).
14. See infra section IV.B.2 (noting that the most prominent and obvious options for delegating the
selection of appeals court judges to the Judiciary itself would tend to favor conservatives over liberals).
15. See infra section V.A (proposing mechanisms for the selection and supervision of law clerks that
would have an inherently liberal bias).
16. See infra note 214 (describing ways in which the mechanism of a clerkship merit commission
could be modified to advance the goal of entrenching conservative rather than liberal hegemony).
2011]
HOW TO RIG THE FEDERAL COURTS
785
stability, or the degree to which an institution produces consistent policy
outcomes over time if left to its own devices. A judiciary characterized by
ideological entrenchment is one that combines high policy stability with low
political responsiveness.
Part III employs comparative analysis of the American and Japanese judiciaries to arrive at an organizational strategy for achieving ideological entrenchment. This comparison explores the consequences of different design choices
and highlights institutional variables that can be manipulated to produce varying
degrees of political responsiveness and policy stability. The result is a broadly
generalizable entrenchment strategy of vesting power over sensitive policy and
personnel decisions in ideologically reliable, self-replicating agents who are
insulated from the effects of electoral regime change.
Finally, Parts IV and V set forth specific mechanisms for implementing this
strategy that are tailored to the specific goal of entrenching a lasting liberal bias
in a conservative Federal Judiciary. These mechanisms include the creation of a
new intermediate court of appeals with power both to select its own members
and to curtail the Supreme Court’s appellate docket; the introduction of a
supermajority rule for granting certiorari; the delegation of law clerk selection
and supervision to an ideologically imbalanced, politically unaccountable, selfreproducing body of experts, in a manner that appears to depart only minimally
from existing practices; and the adoption of bureaucratic mechanisms and
decisionmaking practices that incentivize and equip law clerks to restrain and
combat any hint of judicial conservatism.
I. A PRACTICAL EVALUATION OF CONVENTIONAL ENTRENCHMENT STRATEGIES
A. THE IDEA OF CONSTITUTIONAL DESIGN SPACE
The Constitution of the United States leaves open a substantial amount of
institutional design space. A visitor from another country who sought to understand the organization of American government would come away with a
woefully incomplete and misleading impression if he or she were simply to read
the Constitution. And of the various constitutional provisions that purport to
establish the institutional framework of the federal government, few leave open
more design space than Article III. The open-endedness of the institutional
framework for the Judiciary is evident not only from the face of Article III,
which merely ordains the creation of a Supreme Court of indeterminate size and
appellate jurisdiction,17 but also from the haste with which the founding generation found it necessary to enact the Judiciary Act of 1789.18
One aspect of judicial organization that Article III leaves relatively open is
17. See U.S. CONST. art. III, § 1 (creating “one supreme Court” and “such inferior Courts as the
Congress may from time to time . . . establish”); id. § 2, cl. 2 (conferring upon the Supreme Court
appellate jurisdiction “with such Exceptions, and under such Regulations as the Congress shall make”).
18. See WOOD, supra note 6, at 408–09.
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the degree of autonomy that federal judges enjoy from the other branches. It is
perhaps typical to think of appointment for life and protection against diminution in salary as the gold standards of judicial independence, which can at best
be matched and in no event exceeded.19 At the same time, however, it has never
been any secret that Congress has the power to influence the Judiciary by such
means as denying it jurisdiction and resources and even threatening judges with
impeachment.20 The United States poses no exception to the general rule that
“[t]he judiciaries in all of the liberal democracies are vulnerable, in varying
degrees, to the power of legislatures to create, modify, and destroy judicial
structures.”21
There are two constitutionally fixed characteristics that define both the range
and the efficacy of potential design strategies. The first is that Article III judges
cannot be fired. The second is that these judges are by now somewhat numerous. There are nearly nine hundred Article III judgeships authorized by statute,22 and that number has only grown over time. It is questionable, moreover,
whether that number can ever be reduced: Congress has in the past abolished
Article III judgeships by statute, but the constitutionality of doing so remains
dubious at best.23 When one combines constitutional rules that ensure longevity
of judicial tenure with a relatively competitive political environment that regularly rewards both parties with opportunities to select judges, the net result is a
federal bench that is consistently large and ideologically heterogeneous.
These fixed parameters hamper the effectiveness of some court-rigging strategies while increasing the effectiveness of others. As discussed below, the most
popular strategies for manipulating the behavior of the Federal Judiciary—courtpacking and court-gerrymandering—are largely heedless of these characteristics
and thus maladapted to the institutional environment. By contrast, a welltailored institutional design strategy deals with these characteristics not as
constraints or obstacles, but rather as resources and opportunities to be lever19. See Lewis A. Kornhauser, Is Judicial Independence a Useful Concept?, in JUDICIAL INDEPENDENCE
CROSSROADS: AN INTERDISCIPLINARY APPROACH 45, 49 (Stephen B. Burbank & Barry Friedman
eds., 2002) (“Political scientists and legal academics . . . generally consider the federal judiciary in the
United States as the paradigmatic case of judicial independence.”).
20. See infra note 28.
21. Peter H. Russell, Toward a General Theory of Judicial Independence, in JUDICIAL INDEPENDENCE
IN THE AGE OF DEMOCRACY: CRITICAL PERSPECTIVES FROM AROUND THE WORLD 1, 13 (Peter H. Russell &
David M. O’Brien eds., 2001).
22. See Inside the Federal Courts, FED. JUDICIAL CTR., http://www.fjc.gov/federal/courts.nsf (follow
“How the Federal Courts Are Organized” hyperlink; then follow “Federal judges and how they get
appointed” hyperlink) (last visited Feb. 11, 2011).
23. See Stuart v. Laird, 5 U.S. (1 Cranch) 299, 301–02, 308–09 (1803) (upholding the repeal of the
Judiciary Act of 1801 without explicitly addressing the constitutional question of whether Congress
could eliminate existing Article III judgeships); CHARLES GARDNER GEYH, WHEN COURTS & CONGRESS
COLLIDE: THE STRUGGLE FOR CONTROL OF AMERICA’S JUDICIAL SYSTEM 81–85 (2008) (discussing the
abolition of the Commerce Court and the reappointment of its members to the circuit courts); Cramton,
supra note 9, at 1329–30 (discussing the three occasions in American history, all in the 1800s, on which
Congress sought to abolish Article III judgeships); Jackson, supra note 9, at 991–92 (noting the
controversy surrounding congressional abolition of judgeships).
AT THE
2011]
HOW TO RIG THE FEDERAL COURTS
787
aged and exploited.
B. THE LIMITATIONS OF COURT-PACKING STRATEGIES
Franklin Roosevelt’s proposal to appoint additional Justices to an ideologically hostile Supreme Court,24 Congress’s temporary reduction of the size of the
Supreme Court in order to deny Andrew Johnson any appointments at all,25 the
appointment of numerous Federalist sympathizers to newly created judgeships
in the dying days of the Adams Administration,26 and the equally dramatic
refusal of the Jeffersonian Republicans to honor those appointments27 are
merely extreme manifestations of a generally accepted and time-honored strategy of influencing the ideological direction of the courts by shaping their
membership. The basic idea behind this family of approaches, which might
generically be called court-packing strategies, is to maximize the ratio of
ideologically aligned judges to ideologically hostile judges on the bench. The
most efficient way to do so is to engage in both the addition of sympathetic
judges (by filling naturally occurring vacancies and creating new judgeships)
and the subtraction of opposition judges (by eliminating existing judgeships and
forcing existing judges off the bench).
There are a number of reasons why such approaches are bound to meet with
only limited success. First, grave constitutional obstacles effectively rule out the
subtraction half of the strategy. Merely being liberal or conservative hardly
qualifies as an impeachable offense,28 and the elimination of existing federal
24. See sources cited supra note 10.
25. See John V. Orth, How Many Judges Does It Take To Make a Supreme Court?, 19 CONST.
COMMENT. 681, 684–85 (2002) (discussing the reduction in the size of the Court, and noting also how,
along similar lines, the Judiciary Act of 1801 eliminated a seat from the Supreme Court in an effort to
deny Jefferson the opportunity to make an appointment).
26. See An Act Concerning the District of Columbia (District of Columbia Organic Act of 1801), ch.
15, § 11, 2 Stat. 103, 107 (1801) (authorizing the President to appoint an unspecified number of justices
of the peace for the District of Columbia); WOOD, supra note 6, at 419–20 (describing the circumstances surrounding the passage of the Judiciary Act of 1801 and the resulting appointment by the
Federalists of the “midnight judges”).
27. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 154–80 (1803) (holding that the Court lacked
jurisdiction to issue a writ of mandamus directing Jefferson’s Secretary of State, James Madison, to
deliver a judicial commission to William Marbury, who had been appointed a justice of the peace for
the District of Columbia in the last hours of the Adams Administration); Stuart, 5 U.S. (1 Cranch) at
301–02, 308–09 (upholding the Jeffersonian repeal of the Federalists’ “Midnight Judges Act” and, with
it, the elimination of sixteen circuit judgeships); WOOD, supra note 6, at 420–42 (discussing the
determination of the Republicans to bring the Federalist-dominated Judiciary to heel and the background to the Court’s decisions in Marbury and Stuart).
28. See U.S. CONST. art. II, § 4 (“[A]ll civil Officers of the United States, shall be removed from
Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”). Occasional efforts to impeach individual federal judges on account of their political views have
fallen short. See LEE EPSTEIN & JEFFREY A. SEGAL, ADVICE AND CONSENT: THE POLITICS OF JUDICIAL
APPOINTMENTS 7, 31–32 (2005) (describing the failed efforts to impeach Justices Samuel Chase and
William O. Douglas, among others, on account of their political views); MICHAEL J. GERHARDT, THE
FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 103 (2d ed. 2000) (noting
then-House Majority Leader Gerald Ford’s widely quoted but ultimately unsuccessful argument in
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judgeships by statute is of questionable constitutionality at best.29 Second, the
sheer size of the bench, combined with the impossibility of subtraction, makes it
difficult to steer the courts using only addition. Appointing ten judges may have
a considerable impact on the ideological balance of the bench when there are
only ninety judges, but those same ten judges are a drop in the bucket when the
total number of judges approaches nine hundred.30
Third, the tactic of adding new judgeships is bound to become increasingly
ineffective over time. Presumably, both parties will pursue this tactic. Indeed, in
order to gain ground, each party may seek to add judges at an even greater rate
than the other party. The pursuit of this tactic by both parties drives up the size
of the bench. As a result, the effect of each additional judgeship is increasingly
diluted, and it becomes necessary for subsequent governments to add everlarger numbers of judges in order to tilt the ideological balance of the bench the
other way—which, in turn, increases the size of the bench and dilutes the
impact of additional judgeships still further. The net result is an increasingly
large Judiciary that is increasingly difficult to rebalance by adding new judgeships.
Lastly, the effects of addition are not lasting. Relative to electoral politics in
some other countries,31 American politics have long been characterized by
competitive elections and relatively frequent alternation in political power.
Consequently, neither side is ever completely shut out of appointing federal
judges for an extended period of time. Instead, each party regularly has the
opportunity to roll back, and eventually reverse, whatever progress the other
party was able to achieve while in power. Nearly every president succeeds at
reshaping the Federal Judiciary to the point that his own party’s appointees
constitute a majority of the bench.32 Entrenchment of a particular ideological
bias on the federal courts via a strategy of addition is a Sisyphean task: no
support of the effort to impeach Justice Douglas that an “impeachable offense” is “whatever a majority
of the House [considers it] to be at a given moment in history” (brackets in original)); GEYH, supra note
23, at 125, 131–42 (describing the effort to impeach Justice Chase, and arguing that a strategy of
impeaching judges on account of the substantive content of their decisions has “become decreasingly
viable over time”).
29. See U.S. CONST. art. III, § 1 (stipulating that “Judges, both of the supreme and inferior Courts,
shall hold their Offices during good Behaviour”); James E. Pfander, Removing Federal Judges, 74 U.
CHI. L. REV. 1227, 1246–49 (2007) (arguing that Article III’s guarantee of judicial tenure “rules out any
removal proceedings (including intrabranch proceedings) not specified in the Constitution”); supra note
23 and accompanying text.
30. See supra note 22 and accompanying text.
31. See David S. Law, The Anatomy of a Conservative Court: Judicial Review in Japan, 87 TEX. L.
REV. 1545, 1576 & n.187 (2009) (contrasting Japan’s long history of one-party rule with the historically
competitive nature of American elections); Beatriz Magaloni, Enforcing the Autocratic Political Order
and the Role of Courts: The Case of Mexico, in RULE BY LAW: THE POLITICS OF COURTS IN AUTHORITARIAN
REGIMES 180, 182–83, 194–97 (Tom Ginsburg & Tamir Moustafa eds., 2008) (summarizing Mexico’s
long history of one-party rule); The Vote that Changed Japan, ECONOMIST, Sept. 5, 2009, at 13, 13
(discussing the significance of Japan’s long-ruling Liberal Democratic Party ceasing, for only the first
time in half a century, to be the largest party in the Diet).
32. See supra note 4 and accompanying text.
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sooner does one party manage to gain, or regain, the upper hand than it loses
power and must start once again at a disadvantage. For example, when President Clinton took office following twelve uninterrupted years of Republican
rule, Republican appointees constituted more than 75% of the federal bench.33
By the time he left office eight years later, Democratic appointees held a
miniscule 1% advantage.34 By the end of 2008, after George W. Bush had
served two terms, the balance had once again tipped in favor of Republican
appointees, but only by a margin of about 6%.35 The net result is that the
Judiciary does not reliably favor either side over the long term but instead
reflects a lagging average of electoral politics.36
In sum, a conventional entrenchment strategy of filling judicial vacancies as
they arise with ideologically like-minded judges is unlikely to be highly effective. A purely appointments-based strategy tends to confer only a relatively
weak advantage, and only on a temporary basis. In order to maintain ideological
dominance of the federal bench using only a strategy of addition, it is necessary
not only to have patience, but also to hold political power most of the time. And
in American politics, that is not a realistic prospect.
C. THE LIMITATIONS OF GERRYMANDERING STRATEGIES
Courts can be gerrymandered in a number of ways. They can be split into
multiple courts, they can be consolidated with other courts, or their boundaries
can be redrawn. It is not difficult to discern ideological and political motivations
behind certain efforts to redraw the judicial map. Proposals to split the Ninth
Circuit, for example, have been circulating for some time now and are typically
dressed in justifications of administrative necessity.37 In reality, however, the
proposed split is a form of gerrymandering intended to quarantine the court’s
liberal judges in a smaller, less powerful circuit, if not also to prevent supposedly liberal California-based judges from deciding environmental cases of
particular importance to the northwestern states in the circuit.38
It is highly questionable whether gerrymandering is an effective strategy for
33. See Carp et al., supra note 4, at 315.
34. Id. (noting that, by the time that Clinton left office, 51% of federal judges were Democratic
appointees).
35. See Sara Schiavoni, Partisan Makeup of the Bench, 92 JUDICATURE 282, 282 (2009).
36. See, e.g., ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 190 (1989) (arguing that judicial review
does little more than impose a lagging average of electoral politics upon a current majority); Richard
Funston, The Supreme Court and Critical Elections, 69 AM. POL. SCI. REV. 795, 806–07 (1975) (arguing
that the Supreme Court tends to invalidate laws during the “lag period” after a realigning election that
leaves it temporarily out of sync with the elected branches); supra note 4 and accompanying text
(describing the longstanding tug-of-war between the two parties over the composition of the Federal
Judiciary).
37. See Frank Tamulonis III, Comment, Splitting the Ninth Circuit: An Administrative Necessity or
Environmental Gerrymandering?, 112 PENN. ST. L. REV. 859, 861–62 (2008).
38. See id. at 877–78 (discussing the political motivations behind proposals to split the circuit, and
noting that the belief that judges from the circuit’s southern states are more pro-environment than those
from its northwestern states appears to be mistaken).
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creating a court that will be ideologically reliable over the long run. The basic
problem is that, even if the membership of a particular court happens to be
liberal or conservative as of the time it is created, there is no guarantee that it
will remain that way: a president can appoint liberal judges to Idaho, or
conservative judges to Hawaii.39 Accordingly, gerrymandering is an unreliable
means of creating a particular court that will be consistently liberal or conservative in the long run, as appears to be the goal of those who wish to split the
Ninth Circuit.
Likewise, gerrymandering strategies are unlikely to enable either party to
establish lasting ideological dominance of the federal courts as a whole. Indeed,
such strategies can easily and rapidly backfire. In electoral politics, each party
seeks to maximize the number of seats that it controls. To do so in a system of
plurality voting and single-member districts, a party will seek to spread out its
supporters so as to enjoy majorities in as many districts as possible, albeit by a
smaller margin in each district. The goal of judicial gerrymandering on a
national scale is analogous to that of electoral gerrymandering by a political
party: a liberal gerrymander seeks to maximize the number of circuits on which
liberal judges constitute a majority, so that the liberal majority on each circuit
can then control the policy output of the circuit as a whole by exercising its
voting power to rehear and reverse cases en banc. In order to maximize the
number of circuits under liberal control, however, this kind of gerrymandering
relies on the creation of relatively slim majorities on each circuit. The slimness
of these majorities, combined with the frequency of judicial vacancies, creates a
dangerous vulnerability: a government of the opposite party will quickly be able
to make appointments that swing the balance of power in all of the circuits in
the opposite direction.
II. TWO CHARACTERISTICS OF POLICYMAKING INSTITUTIONS:
POLITICAL RESPONSIVENESS AND POLICY STABILITY
An alternative to the court-packing and gerrymandering approaches is to
embed within the judiciary structures and mechanisms that generate and reinforce particular patterns of behavior. Courts, like other policymaking institutions, can be engineered to favor certain policy outcomes over others. It does, of
course, matter a great deal who the judges happen to be and what jurisdiction
they possess. But quibbling over who will fill a judicial vacancy, or even how
many vacancies there will be, hardly begins to exhaust the possible strategies
39. Some states—for example, Idaho and Hawaii—predictably elect senators of a particular ideological persuasion. Senators from reliably liberal (or conservative) states can be expected to resist the
appointment of conservative (or liberal) judges from their home states. If they are successful in doing
so, then the circuits that include those states will tend to display a certain ideological leaning. There is
no guarantee, however, that they will succeed. A senator’s ability to prevent the appointment of
home-state judges of whom he or she disapproves is a function of senatorial courtesy practices that
have become hotly contested and have vacillated in scope in recent years. See Law, supra note 5, at
493–96.
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for reshaping the output of the federal courts. It also matters a great deal what
incentives and constraints the judges face, what resources they have available to
them, and how the relationships among them are defined. These aspects of an
organization are akin to the genetic code of a living organism: by tinkering with
them, it becomes possible to imbue the organization with deep-seated behavioral tendencies. The difficulty lies in knowing what to alter, and in what ways.
Policymaking institutions possess varying degrees of two overarching characteristics that ought to be of particular interest to political actors. The first of
these characteristics is political responsiveness. An institution can be highly
responsive to changes in its political environment, such as regime change, or it
can exhibit a high degree of autonomy. Its location on this dimension reflects
the “politics of structural choice”40 surrounding its creation and ongoing operation. This is as true of a court as it is of an administrative agency. In a judiciary,
political unresponsiveness is widely considered a virtue—one that goes by the
name of judicial independence—but there are often mercenary, self-serving
reasons for politicians to favor judicial independence and create courts that are
politically unresponsive.41
The second characteristic is policy stability. An institution can steadfastly
follow the same course from year to year, or it can behave in unpredictable
ways and evolve in unexpected directions. In some organizations, such as
fast-growing technology companies, people are rewarded for entrepreneurialism
and creativity. These characteristics are generally not prized, however, in a
judicial system. Like political unresponsiveness, policy stability is often framed
as a virtue in the judicial context, where a version of it is institutionalized and
celebrated as stare decisis. Conversely, deviation from the existing path is not
celebrated as entrepreneurialism or creativity in this context. Depending upon
the context, one might speak instead of disregard for precedent or “ideological
40. Terry M. Moe, The Politics of Bureaucratic Structure, in CAN THE GOVERNMENT GOVERN? 267,
281 (John E. Chubb & Paul E. Peterson eds., 1989); Terry M. Moe & Scott A. Wilson, Presidents and
the Politics of Structure, LAW & CONTEMP. PROBS., Spring 1994, at 1, 4–5 (1994).
41. See, e.g., TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN
CASES 24–33 (2003) (arguing that governments at risk of losing power face an incentive to empower
judicial institutions as a form of “political insurance” against potential losses under an opposition
government); RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW
CONSTITUTIONALISM 43–44 (2004) (explaining the adoption of judicial review by independent courts as a
form of “hegemonic preservation” by governing elites facing a future loss of political power); Lee
Epstein & Jack Knight, Constitutional Borrowing and Nonborrowing, 1 INT’L J. CONST. L. 196, 200,
210–12 (2003) (arguing that “uncertainty about future political prospects” leads “dominant political
actors to prefer selection and retention mechanisms that many scholars associate with judicial independence”); William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group
Perspective, 18 J.L. & ECON. 875, 877–79 (1975) (arguing that the creation of politically unresponsive
courts benefits legislators because the prospect of judicial enforcement of the original legislative
bargain renders interest groups willing to pay higher up-front rents for legislation). See generally David
S. Law, Constitutions, in THE OXFORD HANDBOOK OF EMPIRICAL LEGAL RESEARCH 376, 384–87 (Peter
Cane & Herbert M. Kritzer eds., 2010) (surveying the literature on the “judicialization” of politics and
the reasons for which political actors often tolerate and even encourage policymaking by independent
courts).
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Table 1. A Typology of Policymaking Agents
Highly responsive
Unresponsive
Highly stable
Obedient agent
Stubborn agent
Unstable
High-maintenance agent
Rogue agent
drift,”42 wherein a court’s policy orientation changes over time.
Political responsiveness and policy stability are conceptually distinct phenomena that do not necessarily go hand in hand as a practical matter. Failure to
change course is politically responsive, just as a change in course is politically
unresponsive, if the political environment itself remains unchanged. An agency
characterized by policy stability may find it difficult to react quickly and
appropriately to changes in its political environment. But it is also possible for
an agency to combine both responsiveness and stability by acting quickly upon
the wishes of its political masters (responsiveness) without requiring a good
deal of ongoing attention or intervention to ensure that it does not stray from
whatever path has most recently been chosen (stability).
The ideal combination of these two characteristics will vary according to the
goals and circumstances of those responsible for creating the institution. Suppose that the government is creating a new agency and must choose how
responsive and stable it wants the new agency to be. The four possible combinations are set forth above in Table 1. The relationship between the government
and the agency is, quite literally, a principal–agent relationship. Different types
of principals will, in turn, prefer to create different types of agents. From the
perspective of a government that expects to remain in power indefinitely, the
ideal agency is likely to be an obedient agent—one that responds quickly to
instructions and executes them faithfully unless new instructions are given, in
which case it will immediately and faithfully execute the new instructions. In
other words, the ideal agency will combine political responsiveness and policy
stability, much like a car that has power steering yet travels in a straight line as
long as one does not touch the wheel. By comparison, an agency that is
responsive but unstable—a high-maintenance agent—is more akin to a truant
child who fears his parents but misbehaves as soon as they are not looking.
Worse still is a rogue agent, which is prone not only to veer off course, but also
to resist direction from the outset.
The calculations change, however, if the principal is instead an elected
government that fears losing control of its newly created agency to the opposition at the next election. In that case, the government may prefer to create what
might be called a stubborn agent—one that neither accepts new instructions nor
42. E.g., Lee Epstein et al., Ideological Drift Among Supreme Court Justices: Who, When, and How
Important?, 101 NW. U. L. REV. 1483 (2007) (offering empirical evidence that judicial preferences are
not necessarily stable over time).
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strays from its intended course. This prediction is consistent with recent scholarship in the field of comparative judicial politics suggesting that governments
that anticipate losing power can be expected to create and empower politically
unresponsive judicial institutions in order to hinder future opposition governments, safeguard their own interests, and entrench their own policy preferences
as far as possible into the future.43
This typology of institutional characteristics makes it possible to define in
precise terms what it means for political actors to pursue a strategy of institutional entrenchment: such a strategy consists of embedding policy preferences
in an institution by designing the institution to be both highly unresponsive to
changes in its political environment and highly consistent over time in its policy
preferences. Compared to other policymaking institutions, courts are already
likely to be characterized by relatively high levels of political unresponsiveness
and policy stability, owing to the normative embrace of judicial independence
and stare decisis. In theory, therefore, courts should be more susceptible to
institutional entrenchment strategies than other policymaking institutions. From
a design perspective, court-rigging is not a revolutionizing act, but rather an
exercise in accentuating characteristics that courts already possess to a considerable degree.
III. A COMPARATIVE ANALYSIS OF THE IMPACT OF INSTITUTIONAL DESIGN ON
JUDICIAL BEHAVIOR
From a strictly instrumental perspective, part of the problem with conventional court-packing and gerrymandering strategies is that they are transparent,
ham-fisted forms of manipulation that attract criticism and invite opposition
under the familiar banner of judicial independence. By resorting to such tactics,
the legislative and executive branches cast themselves unmistakably as the
villains in a familiar narrative about the separation of powers. An easier, if not
also more effective, way to influence the judiciary would be to alter the manner
in which the judiciary itself allocates its existing caseload and resources. By
ensuring that the judiciary itself generates the necessary pressures on individual
judges, an appropriate institutional design strategy can steer judicial policymaking in the desired direction without compromising the formal appearance of
judicial independence.
43. See, e.g., GINSBURG, supra note 41 (arguing that governments at risk of losing power provide
themselves with “political insurance” by empowering courts to act as a check against future governments); HIRSCHL, supra note 41 (arguing that governing elites who face loss of power engage in
“hegemonic preservation” by deliberately empowering courts to interfere with policymaking by
potentially unfriendly future regimes); ALEC STONE, THE BIRTH OF JUDICIAL POLITICS IN FRANCE 46–50
(1992) (observing that the enhancement of presidential power was prominent, if not dominant, among
Charles de Gaulle’s motives for creating the Conseil Constitutionnel); see also McNollgast, The
Political Origins of the Administrative Procedure Act, 15 J.L. ECON. & ORG. 180, 189–95 (1999)
(arguing that Democrats abandoned their earlier opposition to the Administrative Procedure Act and
chose to support its enactment as a means of entrenching New Deal policy against an anticipated
Republican political tide).
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The Japanese judiciary represents precisely such a feat of institutional design:
it combines a high degree of formal and institutional autonomy with politically
subservient behavior. As Mark Ramseyer and Eric Rasmusen note, Japanese
judges, like their American counterparts, enjoy similarly explicit and strong
constitutional guarantees of judicial independence.44 On the face of the Japanese constitution, the only noticeable difference between the protections enjoyed by Japanese judges and those enjoyed by American federal judges is that
Japanese judges are subject to mandatory retirement at an age to be fixed by
statute.45 Mandatory retirement for judges is a relatively common practice that
is not widely thought to pose much of a threat to judicial independence.46
Moreover, not only are these guarantees of formal independence honored in
Japan, but the Japanese judiciary also enjoys much greater control over its own
affairs than the Federal Judiciary in a crucial respect: it enjoys the power to
select and promote its own members.47
Yet the difference between the behavior of the Japanese courts and that of our
federal courts could not be more profound. The infamously passive Supreme
Court of Japan (SCJ) is widely considered the most conservative constitutional
court in the world48—and deservedly so, given that it has struck down only
eight laws since its creation over half a century ago.49 Likewise, the Japanese
judiciary as a whole has a reputation for caution and conservatism.50 The
question that ought to occur to anyone interested in either the design of
government institutions or judicial behavior, therefore, is how the Japanese have
managed to engineer a passive, subservient judiciary in the face of constitutional guarantees of judicial independence that are not very far removed from
those present in our own system. The answer to that question holds valuable
lessons for students of both judicial politics and institutional design.
The Japanese judiciary is especially fertile ground for comparison because of
44. J. MARK RAMSEYER & ERIC B. RASMUSEN, MEASURING JUDICIAL INDEPENDENCE: THE POLITICAL
ECONOMY OF JUDGING IN JAPAN 125–32 (2003).
45. NIHONKOKU KENPO៮ [KENPO៮] [CONSTITUTION], art. 79, para. 5, art. 80, para. 1; Saibansho ho [Court
Act], Law No. 59 of 1947, art. 50, translated in 2 EHS LAW BULL. SER. no. 2010 (2005) (providing that
lower-court judges must retire at age sixty-five and Supreme Court Justices must retire at age seventy).
46. See, e.g., Seventh United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, Basic Principles on the Independence of the Judiciary, G.A. Res. 40/146, ¶ 11, U.N. Doc.
A/RES/40/146 (Dec. 13, 1985) (deeming it consistent with judicial independence that judges may be
subject to a mandatory retirement age, as long as that age is “adequately secured by law”).
47. See infra section III.A.2.
48. See, e.g., DAVID BEATTY, CONSTITUTIONAL LAW IN THEORY AND PRACTICE 121 (1995) (“Among comparativists, constitutional review in Japan is regarded as the most conservative and cautious in the world.”); Kazuyuki
Takahashi, Why Do We Study Constitutional Laws of Foreign Countries, and How?, in DEFINING THE FIELD OF
COMPARATIVE CONSTITUTIONAL LAW 35, 47 (Vicki C. Jackson & Mark Tushnet eds., 2002) (condemning the SCJ
as “a court so subdued as to deprive judicial review of all its significance”).
49. See Law, supra note 31, at 1547.
50. See, e.g., id. at 1546–49 (describing the conservatism of the Japanese Supreme Court); Setsuo
Miyazawa, Administrative Control of Japanese Judges, 25 KOBE U. L. REV. 45 (1991) (describing the
various “administrative mechanisms” that help to ensure the conservatism of Japanese lower court
judges).
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the extent to which it is a hybrid of the American and European models. On the
one hand, it is similar to the American model in that there is a single court at the
top of the judicial hierarchy, yet at the same time, the power of judicial review
is exercised by all courts. Constitutional and administrative litigation makes its
way up through a three-tiered system consisting of district courts, high courts,
and a Supreme Court.51 Unlike the typical European or civil law judiciary, the
Japanese judiciary has no specialized administrative or constitutional court;
instead, judicial review is diffuse, meaning that the power of judicial review is
exercised by all courts of general jurisdiction.52 On the other hand, like most
civil law countries, Japan has a career judiciary: one becomes a judge immediately following the completion of formal legal training and is subsequently
promoted through the ranks by the leadership.53 Thus, the leadership of the
judiciary wields power over the judges’ careers in a manner that has no parallel
in the American judicial system. Indeed, the Japanese judiciary is characterized
by a degree of internal discipline and intolerance of ideological deviance that
even seasoned observers of career judiciaries in other civil law countries may
find surprising.54 The net result is that Japan offers a rare opportunity to isolate
and observe the impact of an extreme form of European-style bureaucratic
discipline on the behavior of a judiciary that exercises diffuse, American-style
judicial power.
A. THE INSTITUTIONAL DESIGN OF THE JAPANESE JUDICIARY
The longtime conservatism of the Supreme Court of Japan (SCJ) is not
terribly surprising given the long reign of the conservative Liberal Democratic
Party (LDP), which governed Japan largely without interruption for over fifty
51. See John O. Haley, The Japanese Judiciary: Maintaining Integrity, Autonomy, and the Public
Trust, in LAW IN JAPAN: A TURNING POINT 99, 100–02 (Daniel H. Foote ed., 2007). The Japanese judiciary
also includes summary courts, which handle small claims and petty offenses, and specialized family
courts. See id. at 100–01.
52. See Francisco Ramos Romeu, The Establishment of Constitutional Courts: A Study of 128
Democratic Constitutions, 2 REV. L. & ECON. 103, 103–07 (2006) (contrasting the “paradigmatic
American and European models” of judicial review); Alec Stone Sweet, Constitutions and Judicial
Power, in COMPARATIVE POLITICS 217, 222–26, 231–32 (Daniele Caramani ed., 2008) (contrasting
American “judicial review,” which is “decentralized,” with European “constitutional review” by a
specialized constitutional court); Mark Tushnet, Judicial Review of Legislation, in THE OXFORD HANDBOOK OF LEGAL STUDIES 164, 166–67 (Peter Cane & Mark Tushnet eds., 2003) (contrasting specialized
and generalist constitutional courts).
53. See Law, supra note 31, at 1551–64 (describing the hiring and advancement practices of the
Japanese judiciary).
54. See Frank K. Upham, Political Lackeys or Faithful Public Servants? Two Views of the Japanese
Judiciary, 30 LAW & SOC. INQUIRY 421, 453 (2005) (“[E]ven readers more familiar with the bureaucratic
judiciaries of the civil law world will be surprised by the personnel manipulation and unrelenting
supervision of the Japanese judicial system.”). There may be a functional relationship between diffuse
judicial review, on the one hand, and strong internal discipline, on the other. It is plausible to think that,
as a practical matter, Japan’s unusual combination of diffuse constitutional review and entry-level
judicial hiring necessitates an unusual degree of internal discipline in order to keep novice judges with
no professional or legal experience from exercising the power of judicial review indiscriminately, at no
professional cost to themselves, and subject only to the possibility of reversal on appeal.
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years before suffering dramatic defeat at the polls in 2009.55 Even a dog on a
leash, however, enjoys a degree of slack, and to a degree unsurpassed by any
other constitutional court in a stable democracy, the SCJ has been reluctant to
pull at its master’s leash. The Court’s remarkable record of acquiescence in
areas of concern to the LDP has not required ongoing intervention or prodding
on the part of the LDP, but rather reflects very strong inertial tendencies on the
part of the Court itself. Keeping the judiciary in check has required very little
effort or attention on the part of the government. From the outset, overt political
intervention has never been necessary. The judiciary has rarely done anything
that might provoke the LDP, and in turn, the LDP has rarely found it necessary
to take overt action to bring the judiciary into line.56 On the whole, the judiciary
has been such a reliably conservative institution that the LDP has appeared
content to appoint the judicial candidates suggested by the judiciary itself with
little or no scrutiny.57
That the judiciary has been so well behaved is no accident but instead reflects
the existence of institutional mechanisms and structures that ensure that the
judiciary operates like a reliable machine, one that adheres faithfully to the
wishes of the government with little need for either maintenance or repair. In
other words, the Japanese judiciary has been for the most part an obedient
agent, characterized by a combination of political responsiveness and policy
stability—precisely the type of agent that a principal with a long time horizon,
such as the LDP, would ideally choose.58
1. The Overall Structure of the Judiciary
The key to understanding how the judiciary came to possess this combination
of characteristics is the fact that it is, like most of the Japanese government, a
bureaucracy. The judiciary was historically part of the Ministry of Justice before
gaining formal independence under the country’s postwar constitution, the
Kenpo៮ ,59 and its current organization and practices reflect its origins as a
55. See The Vote That Changed Japan, supra note 31.
56. The LDP did at one point make a point of choosing a conservative Chief Justice in response to
prominent pro-labor decisions by the Court. See Law, supra note 31, at 1592–93 (describing the
decisions concerning the right of public employee unions to strike that precipitated the appointment of
the conservative Kazuto Ishida as Chief Justice, and the Court’s subsequent and abrupt change in
direction following Ishida’s appointment). In the United States, however, the appointment of a Chief
Justice would hardly begin to ensure ideological obedience on the part of the Supreme Court, much less
the entire judiciary. See id. at 1590–92.
57. As a practical matter, the government’s reliance on the judiciary is greater with respect to lower
court vacancies than to Supreme Court vacancies. Compare infra sections III.A.2–III.A.3 (describing
the extensive de facto control exercised by conservative senior judges in the General Secretariat over
judicial appointment and promotion matters), with Law, supra note 31, at 1550–51 (noting that,
although the Prime Minister typically fills Supreme Court vacancies from a short list of candidates
submitted by the Chief Justice, the Chief Justice’s short list is itself the product of extensive
behind-the-scenes involvement by the Prime Minister’s office).
58. See supra Table 1.
59. See Law, supra note 31, at 1565.
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division of a larger bureaucracy. It is characterized by a hierarchical structure,
organizational autonomy, and a distinctive sense of identity and set of internal
norms, but in these respects, it is no different from any other judiciary. What
truly distinguishes it from the typical Anglo–American judiciary, or even the
career judiciaries ordinarily found in civil law countries, is the extent to which
specialized managerial bodies within the judiciary exercise control over the
most politically sensitive operations of the organization including, not least of
all, personnel matters. The extraordinary power that the Japanese judiciary
enjoys over the lives of its members extends beyond routine matters of recruitment, advancement, and pay to include decisions regarding where judges will
live, for how long, and even, in some cases, what bars they may frequent.60
As a formal matter, the Supreme Court of Japan sits atop the judiciary, but
from a practical perspective, the most crucial component of the judiciary is the
Court’s administrative arm—the General Secretariat, or Jimuso៮ kyoku. The General Secretariat is staffed by judges on temporary assignment, typically for three
or more years at a time. The head of the General Secretariat, the Secretary
General, is invariably a well-respected senior judge with excellent prospects of
being appointed one day to the SCJ himself; so too is his subordinate, the
Director of the Personnel Affairs Bureau (PAB), who oversees the division of
the General Secretariat with the crucial responsibility of managing personnel
matters.61 From the monumental Supreme Court complex in Tokyo, over 750
administrators in the General Secretariat oversee the work of approximately
3200 judges scattered throughout the country.62 The General Secretariat nominally answers to the members of the Supreme Court sitting together in their
capacity as the saibankan kaigi, or judges’ conference, but in practice and out of
necessity, the tendency of the kaigi is to rubber-stamp decisions made by the
General Secretariat.63 For example, although the kaigi appoints those who fill
the key leadership positions in the General Secretariat, including those of
Secretary General and Director of the PAB, the candidates for those positions
are selected by the PAB itself, and the Justices have no real ability to perform
independent research on potential candidates.64
The duties of the Chief Justice reflect the importance of administrative work.
Unlike his American counterpart, the Chief Justice is not merely first among
equals; his job description departs substantially from that of his fellow Justices.
Most of the decisional work of the Supreme Court is conducted by five-member
petty benches; only cases of unusual importance are heard by the grand bench
consisting of all fifteen Justices.65 Ordinarily, however, the Chief Justice does
60. See id. at 1556–57.
61. See id. at 1546, 1558. The use of the masculine pronoun is deliberate: to date, no woman has
reached the position of either Secretary General or Director of the Personnel Affairs Bureau.
62. See id. at 1556.
63. See id. at 1591.
64. See id. at 1563.
65. See id. at 1569.
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not participate in the work of the petty benches at all.66 His time is spent instead
on matters of judicial administration.67 In such matters, he works closely with,
and relies heavily upon, his handpicked aides in the General Secretariat. As a
practical matter, the Chief Justice gets to choose who his closest aides will be:
the Secretary General and Director of the PAB are not selected without his
approval.68
2. Administrative Control of Personnel Matters
The administrative powers of the Chief Justice and his top aides in the
General Secretariat are truly impressive. As is typical of civil law countries,
Japan has a career judiciary, which means that the judiciary itself is responsible
in the first instance for hiring, promoting, and disciplining those within its own
ranks.69 The vast majority of its members enter the judiciary at a young age
after completing their legal studies, passing the bar, and undergoing a year of
mandatory professional training at the Legal Training and Research Institute.70
The General Secretariat operates this institute—a fact that gives it the first of
many opportunities to screen out ideologically unsuitable judges.71 Some of the
instructors that it selects are themselves judges, and these instructors are
responsible for preparing secret evaluations of all their students and discouraging those whom they deem unsuitable from applying for judgeships in the first
place.72
Once hired, judges fall under the thumb of the General Secretariat in a variety
of ways. The most conspicuous tool available to the General Secretariat—and,
therefore, the tool that it is most reluctant to employ—is the power to deny a
judge reappointment. Article 80 of the Kenpo៮ subjects lower court judges to
reappointment at ten-year intervals.73 Both the appointment and reappointment
of lower court judges are technically the responsibility of the Cabinet—meaning
66.
67.
68.
69.
See id. at 1569–70.
See id. at 1591.
See id. at 1563.
See, e.g., LISA HILBINK, JUDGES BEYOND POLITICS IN DEMOCRACY AND DICTATORSHIP: LESSONS FROM
CHILE 34–35 (2007) (characterizing the Chilean judiciary as a “highly autonomous bureaucracy,” and
detailing the control exercised by senior judges over the appointment and promotion process); Doris
Marie Provine & Antoine Garapon, The Selection of Judges in France: Searching for a New Legitimacy, in APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER: CRITICAL PERSPECTIVES FROM AROUND THE
WORLD 176, 184–85 (Kate Malleson & Peter H. Russell eds., 2006) (describing the extent to which
judges are responsible for judicial nomination, appointment, and discipline in France); Mary L.
Volcansek, Judicial Selection in Italy: A Civil Service Model with Partisan Results, in APPOINTING
JUDGES IN AN AGE OF JUDICIAL POWER, supra, at 159, 162–66 (characterizing the Italian judiciary as
combining a “standard . . . civil service model for judges” with “an extraordinary degree of [judicial]
independence,” and reviewing the evolution of Italian judicial administration since 1948).
70. See Law, supra note 31, at 1551–52.
71. Reforms instigated by the bar have made it possible for a small number of attorneys to enter the
judiciary from private legal practice. See Daniel H. Foote, Recent Reforms to the Japanese Judiciary:
Real Change or Mere Appearance?, 66 HO៮-SHAKAIGAKU [SOC. L.] 128, 134–36 (2007).
72. See Law, supra note 31, at 1553–54.
73. NIHONKOKU KENPO៮ [KENPO៮] [CONSTITUTION], art. 80, para. 1.
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the Prime Minister—but these decisions have in practice devolved upon the
General Secretariat.74 Rarely, however, has the General Secretariat resorted to
the blunt instrument of denying reappointment in order to exercise control over
ideologically wayward judges.75 Instead, the availability of an array of less
conspicuous yet equally effective instruments of control has obviated the use of
such crude tactics. The General Secretariat can and does make its displeasure
known to certain judges at reappointment time by encouraging them to switch
careers or take early retirement.
More importantly, however, the General Secretariat has ample opportunity to
make life miserable for those it disfavors. It decides how quickly a judge will
advance up the pay scale and professional ladder. Even more importantly, the
General Secretariat decides on a regular basis where a judge will be required to
live and what he or she will be required to do. Every three years or so, a
Japanese judge is reassigned to a new position, most likely in a new location.76
Thus, for example, a judge who has spent the last three years deciding criminal
cases in Tokyo in a manner that pleases the General Secretariat may find
himself dispatched overseas to obtain a costly and prestigious LL.M. at government expense, while another judge whose performance in the same position has
been less pleasing to the General Secretariat may wind up hearing divorce cases
on a remote island.77 By statute, judges have the right to refuse reassignment,
but such refusal is tantamount to professional suicide and one of the few reasons
for which a judge may actually be denied reappointment.78 To avoid the
appearance of impropriety and ex parte mingling with litigants, judges may
even be given the names of certain bars and other establishments to avoid upon
their arrival in more remote areas.79 This degree of centralized control over the
lives of judges has no parallel in either the common law or civil law world, and
it renders the Japanese judiciary more akin to a military organization than a
judicial one.80 Not surprisingly, the General Secretariat has been known to
employ its power over salary, promotion, and assignment to shower disfavor
upon ideological deviants and others guilty of judicial heterodoxy.81
74. See RAMSEYER & RASMUSEN, supra note 44, at 22–23 (describing episodes in which the General
Secretariat made the decision not to reappoint particular lower court judges). As a formal matter,
responsibility for making recommendations to the Supreme Court regarding the appointment and
reappointment of lower court judges has, since 2003, belonged to an advisory committee whose
members are selected by the Court or, in other words, the General Secretariat. See Foote, supra note 71,
at 142–55 (describing the operation of the advisory committee, the kakyu៮ saibansho saibankan shimei
shimon iinkai, and noting the secrecy that surrounds it); Law, supra note 31, at 1555 (same).
75. A rare example is that of Yasuaki Miyamoto, who was denied reappointment at least partly for
reasons relating to his membership in a left-leaning organization of lawyers, judges, and law professors
known as the Young Lawyers Association, or Seiho៮ kyo៮ . See Law, supra note 31, at 1559–60.
76. See id. at 1556–57.
77. See id. at 1558.
78. See id. at 1557 n.63.
79. See id. at 1557.
80. See Haley, supra note 51, at 105.
81. See, e.g., RAMSEYER & RASMUSEN, supra note 44, at 126–27; Law, supra note 31, at 1561.
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3. Administrative Control of the Law Clerk System
The General Secretariat’s influence reaches all the way to the Supreme Court
itself. Although it is not responsible for selecting the Justices themselves, it does
control a crucial resource—the law clerks. It has long been known on an
anecdotal basis to those familiar with the American judicial clerkship system
that law clerks have the potential to influence those whom they serve, and
indeed, there is also empirical support for that view.82 For a variety of reasons,
Japanese law clerks are likely to enjoy greater independence from the Justices,
to exercise greater influence over the Justices, and to be more conservative than
their American counterparts. First, the law clerks are themselves career judges.83
Second, they are not selected by the Justices. Instead, they are chosen by, and
remain accountable to, the General Secretariat.84 Assignment to the Court as a
“legal research official” or cho៮ sakan, typically for three or more years at a time,
is a plum assignment and strong indication that a judge is on an elite career
trajectory, of the sort that might one day culminate in appointment to the
Court.85
Third, clerks are selected by the General Secretariat not only for their
technical competence and expertise, but also for their conservatism, in the form
of strict adherence to judicial orthodoxy and precedent—if not also ideology.86
Justices who have experienced conflict with the clerks grudgingly acknowledge
that they are “elite judges” and the “cream of the crop” in terms of sheer
ability,87 but at the same time, these Justices also bemoan the conservatism of
the clerks.88 To a much greater extent than the Justices, the clerks view it as
their responsibility to ensure that the Court adheres to precedent.89 In practice,
this means that the clerks are likely to resist efforts by liberal Justices to push
the Court’s jurisprudence to the left.
Fourth, not only do the Justices lack the ability to select their own clerks, but
82. See Todd C. Peppers & Christopher Zorn, Law Clerk Influence on Supreme Court Decision
Making: An Empirical Assessment, 58 DEPAUL L. REV. 51, 70–75 (2008) (using logit regression analysis
to identify the impact of law clerk partisanship on the voting of the Justices, while controlling for the
ideology of the Justices); Paul J. Wahlbeck et al., Ghostwriters on the Court?: A Stylistic Analysis of
U.S. Supreme Court Opinion Drafts, 30 AM. POL. RES. 166, 175–82 (2002) (using statistical linguistic
analysis to show that law clerks put distinct stylistic “fingerprints” on their Justices’ opinion drafts). But
cf. Ryan C. Black & James F. Spriggs II, An Empirical Analysis of the Length of U.S. Supreme Court
Opinions, 45 HOUS. L. REV. 621, 638–45 (2008) (finding on the basis of empirical analysis that law
clerks are not responsible for either the increasing length or increasing footnote usage of Supreme
Court opinions).
83. Law, supra note 31, at 1579.
84. See id.
85. See id. at 1557–58 (describing the career track of a judge who is en route to becoming a viable
candidate for the Supreme Court).
86. See id. at 1579, 1582.
87. Id. at 1580 (quoting two anonymous Justices).
88. See id. at 1584 n.242, 1585 (discussing occasional friction between the clerks and some of the
more liberal Justices).
89. Id. at 1581.
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they do not even have clerks assigned to them.90 The thirty-seven clerks are
instead assigned on the basis of subject-matter expertise to one of three groups
specializing in civil law, criminal law, or administrative law.91 Each group is
managed by a supervising clerk, or jyo៮ seki cho៮ sakan. The supervising clerks, in
turn, answer to a head clerk, or shuseki cho៮ sakan, a highly experienced judge of
perhaps thirty or more years experience who is likely on the brink of assignment
to the Tokyo High Court or some other prominent and prestigious position.92
The Justices cannot select specific clerks to work on particular cases; instead,
each group of clerks is responsible for dividing the relevant cases amongst its
members in a manner that evens out their workload.93 Nor are the Justices
responsible for evaluating the performance of the clerks; instead, the clerks are
evaluated on an ongoing basis by their supervisors, and the results are reported
to the General Secretariat, which can of course reward (or punish) them
appropriately at the end of their clerkship service.94 Finally, deviance on the
part of individual clerks is further discouraged—and the collective influence of
the clerks over the Justices is enhanced—by the requirement that difficult or
important cases are handled by group discussion.95 The clerk’s report to the
Justices is then reviewed by the supervising clerks to ensure that it reflects the
conclusions of the group, rather than the views of the individual clerk.96
It is not difficult to see the practical merits of such arrangements. Cases are
handled not by recent law school graduates, but rather by elite judges with
relevant expertise, who are in turn supervised by judges of even greater
experience. These so-called law clerks are talented, experienced, successful,
confident, and influential in their own right. In many cases, the relevant clerk
will have greater expertise in the subject matter of the case, more experience
dealing with the Court, and perhaps even greater judicial experience than the
Justice he or she is advising. Moreover, in difficult and important cases, the
collective expertise of the entire pool of clerks is brought to bear via group
deliberation.
But this institutional setup has another obvious and decidedly less innocuous
consequence: it turns the law clerks collectively into an instrument for encouraging the Court’s fidelity to the conservative orthodoxy of the senior judges in the
General Secretariat.97 On the one hand, the Justices are at least as dependent on
90. See Tokuji Izumi, Concerning the Japanese Public’s Evaluation of Supreme Court Justices, 88
WASH. U. L. REV. (forthcoming 2011); Law, supra note 31, at 1579.
91. See Law, supra note 31, at 1579.
92. See id. at 1580–81.
93. See id. at 1580.
94. See id. at 1581, 1583.
95. See id. at 1580.
96. See id. at 1580–81.
97. The Justices themselves are aware of the impact of the law clerk system on their own behavior.
One recently retired Justice has called publicly for the assignment of law clerks to individual Justices,
in order to give the Justices the resources they need to formulate independent views and author separate
opinions. See Izumi, supra note 90.
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their clerks as their American counterparts. Although both the SCJ and the U.S.
Supreme Court face dockets of roughly similar size, most of the Japanese
docket is mandatory: whereas the U.S. Supreme Court routinely denies certiorari, the SCJ generally cannot refuse to rule on the cases that come before it.98
As a result, Japanese Justices must rely heavily on the clerks if they are to
dispose of thousands of cases on the merits.99 At the same time, roughly half of
the SJC’s members at any given time lack prior judicial experience.100 And the
very Justices who lack judicial experience and are therefore most dependent
upon the clerks—in particular, the former attorneys—are also the most likely to
have liberal leanings.101
On the other hand, the law clerks are by no stretch of the imagination the
alter egos or faithful servants of the Justices. The clerkship system in place
creates a formidable body of talented, experienced, successful, confident, and
conservative bureaucrats who do not cater to the whims of individual Justices
but are beholden instead to the General Secretariat, which has the power to
make or ruin their careers. Justices and clerks alike have remarked that the
clerks view it as their responsibility to ensure that the Court adheres to
precedent.102 In practice, this means that the clerks are likely to resist efforts by
liberal Justices to push the Court’s jurisprudence to the left.103 The practice of
arriving at collective recommendations on the basis of group discussion enables
the clerks not only to pressure one another into conformity, but also to present a
united front that is useful for intimidating or bullying deviant Justices into
submission, as more liberal members of the Court have from time to time
reported.104 And even if a Justice refuses to yield and insists on dissenting, he or
she cannot rely on much help from the clerks, who generally do not assist with
the drafting of nonmajority opinions and, indeed, are given little incentive to do
so.105 In short, the design of the law clerk system, combined with massive
98. See Law, supra note 31, at 1577.
99. See Izumi, supra note 90 (noting that the Japanese Supreme Court decides approximately 7000
cases per year).
100. At any given time, seven of the Court’s fifteen members are likely to lack prior judicial
experience. In addition to the lone law professor, the bar is allocated an informal quota of four seats on
the Court, and the Cabinet typically fills two of the remaining seats with former bureaucrats, one of
whom is often a former diplomat. See Law, supra note 31, at 1566–72. Two more seats are typically
reserved for former prosecutors. See id. at 1565, 1569. However, the prosecutors often have at least
some judicial experience owing to a longstanding practice of temporary personnel exchange, known as
hanken ko៮ ryu, between the Ministry of Justice and the judiciary. See id. at 1565.
101. See id. at 1566 (discussing the left-leaning orientation of the Japanese bar and the resulting
systematic differences between former attorneys and career judges on the Court); id. at 1585–86
(describing how the liberal propensities of the Justices who are former attorneys can be undermined as
a practical matter by their dependency on the Court’s conservative law clerks).
102. See id. at 1581.
103. See id. at 1581–86.
104. See id. at 1583–84.
105. See id. at 1584–85 (“Even in the best-case scenario, the cho៮ sakan will at most check the
‘outline’ and ‘basic ideas’ of a prospective separate opinion, according to one justice who had himself
been a cho៮ sakan.”).
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docket pressures, creates tremendous difficulties for would-be dissenters, who
are likely to be the liberal outsiders on the Court.
4. The Self-Selection of Senior Judges
The most crucial power of the Chief Justice and his aides in the General
Secretariat is not the power that they enjoy over their lower courts, however, but
rather their power to reproduce themselves ideologically by picking their own
replacements. It is this power, more than any other, that ensures the strong
ideological inertia of the courts: the self-replicating character of the leadership
meant that Japan’s long-serving conservative government could rely upon the
judiciary to tread the same conservative ideological path with little need for
correction or intervention. The members of the General Secretariat are quite
literally responsible for selecting and promoting one another on an ongoing
basis, with the result that the General Secretariat comes to resemble an exclusive club for elite judges.106
The Chief Justice, meanwhile, enjoys considerable say over who will occupy
a majority of the fifteen seats on the Supreme Court.107 According to the Kenpo៮ ,
the Emperor appoints the Chief Justice on the advice of the Cabinet,108 while
the Cabinet is supposed to select the remaining Justices on its own.109 Even
more so than in the United States, however, the formal language of the
constitution fails to define the actual institutional framework. In practice, various legal and political constituencies are each allotted an informal quota of seats
on the Court,110 and the power to decide who will fill a given seat depends on
which constituency is being tapped. For example, two seats are effectively
reserved for former prosecutors, and the candidates for these seats are identified
by the Ministry of Justice.111 Although the Chief Justice is responsible for
recommending candidates for every seat on the Court to the Prime Minister, he
does little more than relay the Ministry’s choices to the Prime Minister, who in
turn invariably accepts the recommendations.112
106. See id. at 1563–64.
107. See id. at 1591.
108. NIHONKOKU KENPO៮ [KENPO៮] [CONSTITUTION], art. 6, para. 2.
109. Id. art. 79, para. 1.
110. See Law, supra note 31, at 1551.
111. See id. at 1565.
112. See id. at 1550–51, 1565. That no prime minister in recent memory has seen fit to reject the
Chief Justice’s recommendations as to who should serve on the Court has been construed by some
scholars as evidence that the Chief Justice enjoys effectively complete power over the selection of
Justices. See Haley, supra note 51, at 106–07, 120; David M. O’Brien & Yasuo Ohkoshi, Stifling
Judicial Independence from Within: The Japanese Judiciary, in JUDICIAL INDEPENDENCE IN THE AGE OF
DEMOCRACY: CRITICAL PERSPECTIVES FROM AROUND THE WORLD, supra note 21, at 37, 37–39, 46 (both
describing the role of retiring Chief Justices in choosing their replacements). It is a mistake to conclude
from this fact, however, that the government takes no interest in the ideological composition of the
Court and the Chief Justice has free rein to choose whomever he wishes. See Law, supra note 31, at
1550–51 (describing a process of negotiation between the Cabinet Secretary and the Secretary General
that yields nominees to whom the Prime Minister has already agreed).
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The actual influence of the Chief Justice and General Secretariat is greatest
with respect to the six seats allocated to the judiciary—including that of Chief
Justice—plus a seventh seat that is traditionally filled by a law professor.113
With respect to these seats, the leadership of the judiciary does not simply
review and relay the recommendations of some other body but is instead
responsible for the initial selection of candidates.114 The influence of the Chief
Justice is especially pronounced with respect to the appointment of his own
replacement: in this selection process, even the role of the General Secretariat
appears to be limited.115
B. THE LESSONS AND CONSEQUENCES OF INSTITUTIONAL DESIGN IN JAPAN AND THE
UNITED STATES
The experience of the Japanese judiciary illustrates how organizational structure can foster a combination of policy stability and political responsiveness.
The likelihood of ideological deviance or dramatic departure from established
policy on the part of any judge, much less an entire court, is relatively low
thanks to a combination of lifelong processes of screening and professionalization and fearsome internal disciplinary mechanisms.116 Judges are indoctrinated
from a young age and spend a lifetime under the thumb of the General
Secretariat, which inflicts professional oblivion upon those who engage in open
defiance. The only judges who have little to fear from the conservative leadership of the judiciary are those with little to lose, such as lower court judges on
the brink of mandatory retirement or the elite few who reach the SCJ.117
Other institutional characteristics help to ensure that even members of the
113. See Law, supra note 31, at 1572, 1591.
114. Although the government does become involved in the selection of SCJ candidates, its
involvement takes place in highly discreet fashion. In practice, the short list of candidates that the Chief
Justice ultimately submits for each vacancy to the Prime Minister reflects prior discussion and
negotiation between high-level representatives of the Chief Justice and the Cabinet. See id. at 1550–51.
115. Even the Secretary General may not be privy to the identity of the next Chief Justice until the
choice has already been made. See id. at 1592.
116. In the United States, Justices with prior experience on the circuit courts do not appear to be
ideologically distinguishable from those who lack such experience. See Lee Epstein et al., Circuit
Effects: How the Norm of Federal Judicial Experience Biases the Supreme Court, 157 U. PA. L. REV.
833, 861–64 (2009). However, one might expect professionalization and indoctrination to have more of
an impact in the context of the Japanese judiciary, given that it bears a greater organizational
resemblance to the United States military than to the United States Judiciary. See Haley, supra note 51,
at 105 (drawing the military analogy).
117. Even the Justices, it should be noted, have at least some incentive to behave if they harbor
hopes of one day being promoted to Chief Justice, which remains attractive to sitting members of the
Court on account of the unusual power and prestige of the office. The Chief Justice is on an equal
constitutional footing with the Prime Minister; they alone share the distinction of being appointed
directly by the Emperor. See NIHONKOKU KENPO៮ [KENPO៮] [CONSTITUTION], art. 6. The other members of
the Court, by contrast, are appointed by the Cabinet, as are lower court judges. See id. arts. 79, 80. In
interviews with the author, current and former Justices who had been career judges clearly conveyed
the sense that the position of Chief Justice was highly desirable to sitting members of the Court: they
repeatedly brought up the topics of whether they had been contenders for the position of Chief Justice
and which Justices stood a chance of being promoted.
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SCJ lack either the opportunity or the resources to steer a bold new course for
Japanese constitutional jurisprudence. A deliberate governmental strategy of
appointing Justices close to statutory retirement age deals simultaneously with
the problems of ideological drift and hidden preferences.118 On the one hand,
the fact that members of the SCJ serve an average of only five to eight years
before they must retire119 means that they have very little time in which to
evolve—or, put differently, to gain a sense of “confidence” and independence in
sensitive constitutional cases120—thereby reducing the likelihood of ideological
drift. On the other hand, even if a committed liberal manages to sneak onto the
Court, there are natural limits to what he or she can accomplish in the span of
just a few years. Nor does it help that he or she is likely to encounter resistance
from all sides. The law clerks upon whom the SCJ must rely heavily are career
judges who are not only beyond the control of the Justices, but also have both
the incentive and the ability to discourage ideological deviance on the part of
the Justices.
The fact that the Japanese judiciary is highly disciplined does not mean,
however, that it is blindly locked into a particular course. On the contrary, the
dramatic concentration of power in the Chief Justice has created a highly
effective instrument for a relatively rapid reorientation of the entire judiciary.
Moreover, the fact that he is invariably appointed near mandatory retirement
age means that the government has the opportunity to replace the Chief Justice,
and thus change the course of the judiciary, at relatively frequent intervals. The
Japanese judiciary is therefore best characterized as an obedient agent rather
than a stubborn agent.121
The American Federal Judiciary is, by comparison, neither ideologically
stable nor politically responsive. To some degree, its unresponsiveness is a
matter of conscious design: the goal of the Framers in giving Article III judges
salary protection and life tenure was to shield them from the most blatant forms
of political control.122 Less obviously, however, the absence of strong institutional leadership exacerbates the difficulty of controlling the Judiciary. The
government cannot take advantage of the fearsome arsenal of tools for securing
internal discipline and suppressing ideological deviancy that are available to the
118. See RAMSEYER & RASMUSEN, supra note 44, at 126, 130 (pointing out that the LDP could, if it
wished, set a very high retirement age, and opining that the deliberate use of a lower age limit
facilitates political control of the judiciary); Law, supra note 31, at 1575–76 (documenting the existence
of this strategy on the basis of interviews conducted with current and former Supreme Court Justices
with firsthand experience in the selection of candidates for the Court); J. Mark Ramseyer & Eric B.
Rasmusen, Why Are Japanese Judges So Conservative in Politically Charged Cases?, 95 AM. POL. SCI.
REV. 331, 333 (2001) (hypothesizing that the LDP’s desire to mitigate the problem of ideological drift
on the part of the Justices, combined with its confidence that it would retain political power indefinitely,
led the LDP to adopt a deliberate strategy of appointing Justices near retirement age).
119. See Law, supra note 31, at 1575.
120. See id. at 1577 (quoting one Justice’s lament that the brevity of tenure on the Court prevents its
members from developing “confidence” in the area of constitutional adjudication).
121. See supra Table 1.
122. See THE FEDERALIST NOS. 78, 79, at 464–72 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
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leadership of the Japanese judiciary. Unlike his Japanese counterpart, the Chief
Justice of the United States does not command a bureaucracy with the power to
determine who becomes a judge, how each judge is trained, where each judge
will live, what kind of cases each judge will hear, and who each judge’s clerks
will be. Nor do the powers of the Supreme Court rival those of the saibankan
kaigi123: the Court’s only tool for keeping the rest of the judiciary in check is its
acutely limited institutional capacity for detecting and reversing deviant rulings.124 As a result, a government that wishes to change the ideological direction of the Federal Judiciary faces the arduous task of making a large number of
appointments to the courts over a period of years.125 Moreover, even if the
government manages to do so, there are no institutional mechanisms in place to
prevent the judges that it has appointed from going astray over time.126 The
Federal Judiciary is thus best classified as a rogue agent127: compared to the
Japanese judiciary, it responds slowly to government efforts to change its policy
direction, yet it also lacks the institutional capacity to secure conformity from
individual members of the organization.
Neither the American nor the Japanese model of judicial organization is a
paradigm of ideological entrenchment. On the one hand, the autonomy that
individual judges enjoy under the American model makes it too easy for
123. See supra text accompanying notes 63–64 (discussing the formal supervisory and decisionmaking power of the Justices of the SCJ in their collective capacity as the saibankan kaigi, or judges’
conference).
124. See, e.g., David S. Law & Sanford Levinson, Why Nuclear Disarmament May Be Easier to
Achieve than an End to Partisan Conflict over Judicial Appointments, 39 U. RICH. L. REV. 923, 926 n.15
(2005) (noting that less than 0.5% of all circuit court decisions are ever reviewed by the Supreme
Court); McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of
Law, 68 S. CAL. L. REV. 1631, 1641 (1995) (characterizing the Supreme Court as possessing a “fixed
‘budget’ that determines the number of cases that it can hear each year,” and noting the existence of a
sizeable “gap between the Court’s capacity [to hear cases] and the number of cases decided by lower
courts”).
125. Indeed, even if the new government accomplishes the spectacular feat of filling a majority of
seats on each and every one of the lower federal courts, two institutional characteristics of those courts
will combine to blunt the effectiveness of an appointments-based strategy. The first is random case
assignment at both the district and circuit court levels. The second is that cases are often heard by
unrepresentative samples of the court as a whole. At the district court level, a case is heard by a single
judge who may be utterly out of sync with the rest of the court. (By contrast, in Japan, many cases at
the district court level—such as any criminal case involving a minimum prison sentence of one year or
more—must be heard by three-judge panels, which dampens the effect of individual outlier judges (to
the extent that such outliers even exist)). See Overview of the Judicial System in Japan, SUPREME COURT
OF JAPAN, http://www.courts.go.jp/english/system/system.html (last visited Feb. 13, 2011). Meanwhile,
at the circuit court level, the sample size is slightly larger in the case of a regular three-judge panel and
larger still in the case of an en banc panel, but it remains the case, especially on larger courts, that
individual panels will not be representative of the ideological mix of the court as a whole. Together,
these characteristics ensure that case outcomes will not always reflect the wishes of a bare majority of
the court, and that sensitive cases will on occasion be decided by judges belonging to the ideological
minority. Consequently, the arduous and time-consuming process of gaining ideological sway over the
Supreme Court must be writ large and repeated many times over for the Judiciary as a whole.
126. See Epstein et al., supra note 42, at 1504–20 (documenting, and offering examples of, the
phenomenon of ideological drift on the Supreme Court).
127. See supra Table 1 (setting forth a typology of different types of agents).
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them to generate ideologically deviant policy outcomes. On the other hand,
the reliance of the Japanese judiciary upon powerful leadership that is
subject to replacement at relatively frequent intervals renders it too responsive to regime change. Thus, the point of an ideological entrenchment
strategy is not simply to recreate the Japanese judiciary on American soil. It
is, instead, to construct a hybrid model, in the form of a stubborn agent,128
that combines unresponsiveness to political change with a high degree of
internal conformity. The key techniques for achieving this combination of
characteristics are, however, already on conspicuous display in the Japanese
judiciary. Foremost among them are the delegation of power over personnel
matters to the judiciary itself, and the concentration of that power in the
hands of an ideologically reliable cadre of judges. These techniques can
easily be applied in the context of other judicial systems, as Part IV will
show.
IV. THE CREATION OF A NATIONAL COURT OF APPEALS
In principle, the process of entrenching an ideological bias in any government
bureaucracy—be it an administrative agency or an independent judiciary—can
be reduced to three steps. The first step, that of power-imbalancing, is to
permeate the institution in question with the desired ideological orientation as
thoroughly and deeply as possible at the outset by empowering actors within the
institution who possess the desired ideological bias.129 The second step, that of
stabilization, is to embed within the institution mechanisms that lock this
imbalance of power into place. The third step, that of insulation, is to ensure
that future political actors will have little opportunity to undo or reverse what
was done. All three steps can be executed via an overarching strategy of
delegating power over crucial decisions—including, but not limited to, recruitment and promotion—to ideologically reliable, self-replicating agents who are
insulated from the effects of political regime change.130
Parts IV and V of this Article suggest three concrete techniques for implementing this strategy in the context of the Federal Judiciary. All three are heavily
influenced by the experience of the Japanese judiciary. The first is to transfer
appellate control over judicial policymaking to a newly created court controlled
by a liberal subset of the bench. The second is to vest the power to appoint this
court’s members in the court itself. The third, discussed in Part V, is to constrain
political opponents within the Judiciary by transforming the selection and
supervision of law clerks.
128. See id.
129. See Terry M. Moe, The Politicized Presidency, in THE NEW DIRECTION IN AMERICAN POLITICS 235
(John E. Chubb & Paul E. Peterson eds., 1985) (discussing the presidential strategies of “politicization”
and “centralization” for asserting control over agencies and policymaking, and identifying the ways in
which presidents imbue agencies as deeply as possible with their own ideological preferences).
130. See Law, supra note 31, at 1545–46.
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A. HOW TO BREAK THE GRIP OF THE SUPREME COURT
Perhaps the most obvious problem with which a liberal entrenchment strategy
might have to contend is a conservative Supreme Court. Absent heavy restrictions upon the scope of the Court’s appellate jurisdiction over the lower courts,
it would be difficult to steer the Judiciary as a whole to the left if the Court
drives to the right. Moreover, it would take a number of years to rebalance the
Court itself, and history suggests that a strategy of appointing additional Justices to bring about more immediate change would too obviously echo Franklin
Roosevelt’s greatly maligned Court-packing plan.131 At the same time, however,
there are crucial resources upon which a liberal entrenchment strategy can draw:
there is at any given time a reasonable supply, in absolute numbers, of liberal
judges on the federal bench and even on the Court itself. The challenge, then, is
to secure the long-term, de facto dominance of the liberal faction, even in times
when it is badly outnumbered, while also leaving the supremacy of the Supreme
Court formally intact.
1. Appeal Certification by a New National Court of Appeals
Recent history suggests an ideal starting point for such a strategy in the form
of a convenient, prepackaged, high-credibility institutional reform proposal
advocated several decades ago. In the early 1970s, Chief Justice Burger convened a committee of preeminent legal scholars and practitioners—the “Freund
Committee”—to devise solutions for the already excessive, and ever-increasing,
caseload faced by the Supreme Court.132 The trends identified by this distinguished group have only worsened since that time: while the number of
certiorari petitions has roughly doubled, both the percentage and number of
cases in which the Court grants review have declined dramatically.133
131. See supra note 10 and accompanying text (noting the intensity of public and political opposition to Franklin Roosevelt’s Court-packing plan, even among his erstwhile supporters).
132. See FED. JUDICIAL CTR., REPORT OF THE STUDY GROUP ON THE CASELOAD OF THE SUPREME COURT
(1972), reprinted in 57 F.R.D. 573 (1973); Warren E. Burger, Annual Report on the State of the
Judiciary, 69 A.B.A. J. 442, 443 (1983) (describing Burger’s role); Samuel Estreicher & John E.
Sexton, A Managerial Theory of the Supreme Court’s Responsibilities: An Empirical Study, 59
N.Y.U. L. REV. 681, 684, 689–92 (1984) (recounting the history of the Freund Committee). The Freund
Committee’s proposal for a National Court of Appeals is distinguishable from both the Hruska
Commission’s proposal for a similarly named court, see COMM’N ON REVISION OF THE FED. COURT
APPELLATE SYS., STRUCTURE AND INTERNAL PROCEDURES: RECOMMENDATIONS FOR CHANGE 8 (1975), reprinted in 67 F.R.D. 195, 208 (1975), and from Chief Justice Burger’s suggestion to create a special
temporary panel of the Federal Circuit, see Burger, supra, at 447, neither of which would have vested
de facto power over the Supreme Court’s docket in a newly created body.
133. At the time the Freund Committee submitted its report in the 1971 Term, the Supreme Court
faced a total docket of 4371 cases. See FED. JUDICIAL CTR., supra note 132, at 620 tbl.V. According to the
Court’s own website, its current docket exceeds 10,000 cases per Term. See The Justices’ Caseload, SUPREME
COURT OF THE UNITED STATES, http://www.supremecourtus.gov/about/justicecaseload.pdf (last visited
Oct. 1, 2010); see also David R. Stras, The Supreme Court’s Gatekeepers: The Role of Law Clerks in
the Certiorari Process, 85 TEX. L. REV. 947, 967 (2007) (book review) (documenting the decrease in
both the number and percentage of cases that the Supreme Court decides on the merits, and noting that
the Court granted review over 3% of the time in the early 1980s but has done so less than 1% of the
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The principal recommendation of the Freund Committee was the creation of a
National Court of Appeals (NCA), which would review all petitions that would
otherwise have been filed with the Supreme Court.134 For each petition, it
would be the responsibility of the NCA to decide the case on the merits itself, to
deny review, or to certify the case for review by the Supreme Court. A decision
by the NCA either to deny review or to refuse certification would be unreviewable by the Supreme Court,135 and the Supreme Court, in turn, would be unable
to decide cases that had not been certified by the NCA.136 The membership of
the NCA would consist of existing circuit judges assigned to serve three-year
staggered terms, and these judges would be selected on the basis of an elaborate
seniority-based mechanism that left no room for discretion or manipulation.137
As a political matter, it is not difficult to see how an updated version of the
NCA might plausibly be packaged for public consumption. Devised by a
distinguished and balanced committee of experts at the behest of the Judiciary
itself, the NCA can be sold precisely as it was originally intended—namely, as a
technocratic solution, devoid of any hint of court-packing, to a practical failure
on the part of the Supreme Court that has only become more severe in the years
since the Freund Committee’s original report. The creation of a new appellate
court, it can be argued, is needed to close the growing gap between the
insatiable demand for appellate review and the Court’s willingness and ability to
grant such review. In other words, the true motives behind the creation of a new
federal appellate court can be disguised with plausible, facially neutral arguments that lend the idea more than a veneer of credibility.138
Nor does the limitation of the Supreme Court’s appellate jurisdiction to cases
certified for appeal by the NCA appear to pose grave constitutional difficulties.
time since the October 1999 Term); id. at 987 (observing that the number of certiorari petitions has
nearly doubled since the mid-1980s); The Supreme Court, 2009 Term—The Statistics, 124 HARV. L. REV.
411, 418 tbl.II(B) (2010) (reporting that the Court granted only 0.9% of 8131 petitions for review in its
2009 Term).
134. See FED. JUDICIAL CTR., supra note 132, at 590–95.
135. Id. at 592. Notably, the Freund Committee’s proposal explicitly contemplates NCA review of
state court as well as lower federal court decisions. See id. There is, moreover, no obvious constitutional
obstacle to the inclusion of state court judgments in the NCA’s jurisdiction. See Martin v. Hunter’s
Lessee, 14 U.S. (1 Wheat.) 304, 349–50 (1816) (characterizing the removal jurisdiction exercised by
lower federal courts as a form of appellate jurisdiction); THE FEDERALIST NO. 82, at 495 (Alexander
Hamilton) (Clinton Rossiter ed., 1961) (perceiving “no impediment to the establishment of an appeal
from the State courts to the subordinate national tribunals; and many advantages”). The inclusion of
state court judgments within the appellate jurisdiction of the NCA is crucial both to ensure the effective
independence of the NCA from the Supreme Court and to consolidate its control over the interpretation
of federal law: if the Supreme Court remained free to hear appeals from state court judgments at its own
discretion, it would be capable of overruling the NCA’s decisions in substance.
136. FED. JUDICIAL CTR., supra note 132, at 592.
137. See id. at 591 (proposing a “system of automatic rotation” under which “circuit judges in active
service” would be selected in a simultaneous combination of ascending and descending order of
seniority to serve “three-year staggered terms” on the NCA).
138. Cf. Tamulonis, supra note 37, at 877–78 (describing the arguments offered by Republicans for
splitting the Ninth Circuit).
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Generally speaking, the case law on the outer limits of congressional power to
restrict the appellate jurisdiction of the Supreme Court is inconclusive; likewise,
the extensive scholarly literature “does not yield more than a glimmer of
consensus.”139 A provision that limits the Supreme Court’s appellate jurisdiction
to cases that have been certified for appeal by a lower federal court, however,
does not test the outer boundaries of Congress’s express power under Article III
to regulate the appellate jurisdiction of the Supreme Court140 and thus ought not
to raise serious constitutional doubts. Such a restriction has neither the purpose
nor the effect of depriving the Article III Judiciary as a whole of jurisdiction
over certain classes of cases; nor, indeed, does it even strip the Supreme Court
of appellate jurisdiction over any particular type of case. Rather, it merely
conditions the exercise of that jurisdiction upon certification by a different
Article III court. It is hardly unprecedented to vest exclusive appellate jurisdiction over certain classes of cases in specific federal courts other than the
Supreme Court, or to require certification of cases before they may be brought
before a particular federal court. Relatively recent examples include the Detainee Treatment Act of 2005141 and the Military Commissions Act of 2006,142
which vest in the D.C. Circuit exclusive jurisdiction over cases involving the
detention of alleged unlawful enemy combatants at Guantanamo Bay,143 and the
Anti-Terrorism and Effective Death Penalty Act of 1996, which requires habeas
petitioners to obtain certification from a federal appeals court panel before filing
successive petitions in district court.144
2. Introduction of a “Rule of More than Four”
As a matter of realpolitik, it may be unwise to assume that the Supreme Court
will uphold the constitutionality of a law that drastically curtails its own
139. Lawrence Gene Sager, Foreword: Constitutional Limitations on Congress’ Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 19–20 (1981); see also, e.g., Richard
H. Fallon, Jr., Jurisdiction-Stripping Reconsidered, 96 VA. L. REV. 1043, 1091–92 (2010) (“[W]hether
Article III requires a residuum of Supreme Court supervisory jurisdiction, even in cases in which
Congress has invoked its power to create an exception to the Court’s appellate jurisdiction, is not only
an open question, but also a difficult one.”).
140. U.S. CONST. art. III, § 2, cl. 2 (“[T]he supreme Court shall have appellate Jurisdiction, both as
to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”); see,
e.g., Ex parte McCardle, 74 U.S. (7 Wall.) 506, 508–10, 514–15 (1868) (upholding the ability of
Congress to prevent an unfavorable decision in a pending case by stripping the Court of its appellate
jurisdiction over that case).
141. Pub. L. No. 109-148, § 1005, 119 Stat. 2680, 2742 (2005).
142. Pub. L. No. 109-366, § 950g, 120 Stat. 2600, 2622 (2006).
143. Boumediene v. Bush, 553 U.S. 723 (2008), and Hamdan v. Rumsfeld, 548 U.S. 557 (2006),
addressed, but did not invalidate, these provisions.
144. 28 U.S.C. § 2244(b) imposes a bar against successive habeas petitions. To circumvent the bar, a
three-judge appeals court panel must conclude that the petitioner has made a “prima facie showing” that
one of the exceptions to the statutory bar has been satisfied. See 28 U.S.C. § 2244(b)(3)(C) (2006). The
petitioner then receives a certificate of appealability that permits him or her to obtain review on the
merits in district court. See id. § 2244(b)(3)(D) (2006).
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power.145 Given what is at stake, the Court might attempt to defend itself by
invoking the conveniently amorphous separation of powers to strike down the
statute.146 In order for the Court to defend itself in this manner, however, it
would first have to exercise jurisdiction over a case involving the constitutionality of the statute. In theory, the NCA could deny the Court jurisdiction over all
such cases simply by refusing to certify them for appeal. And, indeed, the NCA
would have every incentive to do so, as its own power over the Court would be
at stake. For good measure, the government might seek to immunize the
certification requirement from challenge by explicitly stripping the Court of
appellate jurisdiction over all separation of powers questions involving the
creation or operation of the NCA, although a jurisdictional restriction of this
sort might itself attract the Court’s ire.
But there is another promising institutional approach to curtailing the power
of the Court that could be adopted in addition to, or in lieu of, the certification
requirement. Indeed, this approach has been suggested by a member of the
Court. The so-called Rule of Four is the well-known rule that a grant of
certiorari requires the affirmative vote of four Justices.147 In a public lecture in
1982, Justice Stevens proposed that the Supreme Court amend its internal
practices to require the affirmative vote of five rather than four Justices to grant
certiorari.148 Such a reform, he argued, would by definition save the Court from
having to decide cases that a majority of the Court did not deem worthy of
decision.149 To this argument, one might also add that there is little point in
145. See Neal Devins, How Not to Challenge the Court, 39 WM. & MARY L. REV. 645, 657 (1998)
(“[A]lthough the Justices will, up to a point, suffer fools on the Hill, the Court must resist direct
challenges to its institutional independence.”). The manner in which the Court reacts to such challenges
may in part reflect its perception of the magnitude and intensity of the political forces that it faces.
Compare, e.g., McCardle, 74 U.S. (7 Wall.) at 513–15 (accommodating the Reconstruction Congress’s
campaign against supporters of the Confederacy by upholding the repeal of the Court’s jurisdiction over
a pending habeas appeal, and acknowledging no limits upon the power of Congress to strip the Court of
appellate jurisdiction), and Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (responding to the
Republican takeover of both Congress and the Presidency by acquiescing in both the circuit-riding
requirement for Justices and the elimination of Article III circuit judgeships held by Federalists), with,
e.g., City of Boerne v. Flores, 521 U.S. 507, 512, 532–36 (1997) (striking down the Religious Freedom
Restoration Act, a bipartisan congressional effort to overturn the Court’s earlier decision in Emp’t Div.,
Dep’t of Human Res. v. Smith, 494 U.S. 872, 885 (1990)), and Plaut v. Spendthrift Farm Inc., 514 U.S.
211, 226–28 (1994) (holding that legislation reinstating securities actions that had been dismissed as
untimely amounted to an impermissible effort to reopen final judgments).
146. There are many forms that such an argument might take. See, e.g., JAMES E. PFANDER, ONE
SUPREME COURT: SUPREMACY, INFERIORITY, AND THE JUDICIAL POWER OF THE UNITED STATES (2009) (arguing
that Article III’s establishment of “one supreme Court” confers upon the Court ultimate supervisory
authority over all state and federal courts alike). But see Fallon, supra note 139, at 1092 (“Scholars who
have studied the originally understood significance of the Constitution’s designation of one federal
court as ‘supreme’ and of others as ‘inferior’ have reached radically different judgments. . . . I can only
question whether there even was a clear, widely shared original understanding of whether the Supreme
Court’s supremacy and the lower courts’ inferior status entailed that the former must possess supervisory authority over the latter.”).
147. See John Paul Stevens, The Life Span of a Judge-Made Rule, 58 N.Y.U. L. REV. 1, 10 (1983).
148. See Estreicher & Sexton, supra note 132, at 806; Stevens, supra note 147, at 21.
149. See Stevens, supra note 147, at 19–20.
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creating a new National Court of Appeals to address an increasingly outsized
docket if the Supreme Court remains free to needlessly revisit and duplicate its
work.
A “Rule of More than Four” might indeed have the intended effect of
preventing the Court from improvidently granting certiorari, but that would not
be its only consequence. The greater the number of votes required to grant
certiorari, the harder it becomes for the Court to hear cases. Increasing the
number of votes required to grant certiorari is thus a straightforward way of
curtailing the Court’s interference with the rest of the judiciary.150 More specifically, introduction of a supermajority voting requirement would enable even a
small minority of the Court to consistently thwart review of the newly created
NCA. Assuming that the parties alternate in power and replace Justices at
anything resembling current rates, the Court is unlikely to possess fewer than
two or three relatively liberal Justices at any given time. Accordingly, a Rule of
Seven would probably suffice to ensure that the liberal wing of the Court
remains indefinitely capable of shielding the NCA from reversal.
It is not clear what, if any, constitutional objection might be leveled against
such a change. The Freund Committee’s report asserts that a rule requiring more
than five Justices to vote in favor of certiorari “would raise the question whether
it was an unconstitutional deviation from the principle that the ‘one Supreme
Court’ mandated by the Constitution always acts by a simple majority of its
nondisqualified members.”151 The report does not, however, purport to explain
how or why the Constitution enshrines the principle that Supreme Court decisionmaking must occur on the basis of a simple-majority vote. Indeed, the Rule
of Four is itself not a simple-majority voting rule. If the power to grant
certiorari can constitutionally be conferred upon a minority of the Court, it is
not obvious why that power cannot be conferred upon a supermajority of the
Court instead.
Likewise, there is no obvious reason why Congress could not choose to fix by
statute the number of votes required for the Court to grant certiorari. The Court
has long expressed the view that the federal courts do not possess any inherent
150. The history of Taiwan’s Constitutional Court, formerly known as the Council of Grand Justices,
illustrates the impact of supermajority voting requirements on a court’s ability to make policy. In
response to a 1957 judicial decision that questioned its formal constitutional status as the country’s sole
legislative body, Taiwan’s Legislative Yuan retaliated against the Court by restricting the Court’s ability
to issue constitutional interpretations to those cases in which a quorum of at least three-quarters of the
Justices could muster a vote of at least three-quarters of those present in favor of the interpretation in
question. See Wen-Chen Chang, Transition to Democracy, Constitutionalism and Judicial Activism:
Taiwan in Comparative Constitutional Perspective 192–96 (June 2001) (unpublished J.S.D. dissertation,
Yale Law School) (on file with author). The Court’s output of constitutional interpretations declined
steeply and did not recover for several decades. See id. at 200 n.18, 203 fig.1 (reporting the number of
constitutional decisions rendered over each period of the Constitutional Court’s history, and describing
the subsequent adoption in 1993 of a two-thirds voting threshold).
151. FED. JUDICIAL CTR., supra note 132, at 607.
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or exclusive power to adopt their own rules of procedure.152 That power
belongs instead to Congress, which has seen fit to delegate that power to the
federal courts by statute but is by no means obligated to do so.153 The Rule of
Four, in particular, does not appear to enjoy any special constitutional status that
might place it beyond the reach of Congress. Indeed, it lacks any legal status at
all: it is merely an unwritten internal practice that did not emerge until the late
nineteenth or early twentieth century.154
It might be objected that a Rule of More than Four is not simply a rule of
procedure but also amounts to a de facto restriction on the Court’s appellate
jurisdiction. Even if that contention is correct, however, it does little to cast
into doubt the constitutionality of the proposed rule. First, the rule cannot
easily be characterized as a jurisdictional restriction. It would not prevent
the Court from hearing any particular type of case but instead would leave
ultimate discretion in the Court to decide whatever cases it chooses. Although a greater number of Justices would have to agree in order for the
Court to grant certiorari, the jurisdiction of the Court itself would remain
unimpaired.
Second, even if the rule is deemed the functional equivalent of a restriction
upon the Court’s appellate jurisdiction, Congress has express power under
Article III to impose far more onerous restrictions.155 Admittedly, the rule
152. See, e.g., Stephen B. Burbank, Procedure, Politics and Power: The Role of Congress, 79 NOTRE
DAME L. REV. 1677, 1681 & n.9, 1682–83 (2004) (citing cases establishing that the Court has held this
view “since at least 1825,” and arguing in particular that Mistretta v. United States, 488 U.S. 361
(1989), makes “legally untenable” any argument that “court rulemaking is an inherent judicial power”).
153. See Rules Enabling Act, 28 U.S.C. §§ 2071–72 (2006) (authorizing the federal courts to
“prescribe rules for the conduct of their business,” and specifically giving the Supreme Court “the
power to prescribe general rules of practice and procedure and rules of evidence for cases in the United
States district courts . . . and courts of appeals”); Mistretta, 488 U.S. at 388–97; Sibbach v. Wilson &
Co., 312 U.S. 1, 9–10 (1941) (“Congress has undoubted power to regulate the practice and procedure of
federal courts.”); 1 DANIEL R. COQUILLETTE, MOORE’S FEDERAL PRACTICE § 1.04 (3d ed. 2010) (discussing
the statutory authorization for the Federal Rules of Practice and Procedure); 23 JAMES WM. MOORE,
MOORE’S FEDERAL PRACTICE § 500.01 (3d ed. 1997) (discussing the statutory authority of the federal
courts to adopt rules and practices of procedure “not repugnant to the laws of the United States”);
Burbank, supra note 152, at 1682 (“[T]he puzzle is not where Congress gets its power, but rather,
particularly in the case of supervisory court rules, how the exercise of a power to promulgate
prospective, legislation-like rules can be squared with the grant of judicial power in Article III.”).
154. See James F. Fagan, Jr., When Does Four of a Kind Beat a Full House?: The Rise, Fall and
Replacement of the Rule of Four, 25 NEW ENG. L. REV. 1101, 1102–07 (1991); Jeffrey R. Lax,
Certiorari and Compliance in the Judicial Hierarchy: Discretion, Reputation and the Rule of Four, 15
J. THEORETICAL POL. 61, 67–68 & n.17 (2003) (emphasizing the ability of a majority of the Court to
change the rule at will); Joan Maisel Leiman, The Rule of Four, 57 COLUM. L. REV. 975, 981 (1957);
Stevens, supra note 147, at 10–14.
155. See U.S. CONST. art. III, § 2, cl. 2 (“[T]he supreme Court shall have appellate Jurisdiction, both
as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”);
supra notes 139–40 and accompanying text (discussing the scope of congressional power to limit the
Court’s appellate jurisdiction); cf. Jed Handelsman Shugerman, A Six-Three Rule: Reviving Consensus
and Deference on the Supreme Court, 37 GA. L. REV. 893, 971–95 (2003) (arguing that Congress has
the power under the Exceptions Clause of Article III to impose upon the Supreme Court a rule that
invalidation of a federal statute requires the affirmative vote of at least six Justices).
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would affect the manner in which the Court exercises discretion over its
appellate docket. Yet it must be recalled that Congress is under no obligation to
give the Court any discretion over its appellate docket and did not, in fact, give
the Court broad discretion until 1925.156 In other words, far from being rooted
either in historical practice or in some inherent power of the Court, the Rule of
Four is a relatively recent innovation that exists at the forbearance of Congress.
And if it is for Congress to decide whether to grant the Court discretion over its
appellate docket, surely it is also for Congress to decide whether to impose
facially neutral and objectively justifiable restrictions on that discretion. Thus,
whether the appropriate head of congressional power is Article I or Article
III,157 it seems clear that Congress has the power to specify that the Court shall
not grant certiorari except upon an affirmative vote of, say, at least threequarters of the Justices.
B. HOW TO ENTRENCH AN IDEOLOGICAL BIAS IN THE NEWLY CREATED COURT
Once the Supreme Court has been effectively subordinated to the newly
created NCA, the next challenge is to ensure that the NCA itself will remain
consistently liberal. Care must be taken to ensure not only that the initial
membership of the new court is liberal, but also that its ideological orientation remains stable over time. The most obvious way to shape the initial
ideological balance of the NCA is simply to create the requisite number of
new judgeships and appoint ideologically suitable judges to the newly
created positions.158 There are both short-term and long-term strategic
advantages, however, to delegating the task of judicial selection to an actor
that is independent of the elected branches, such as a merit commission or
even the Judiciary itself.
In the short term, a delegation strategy is both rhetorically appealing and
politically expedient. Delegation is easily justified on technocratic, nonpartisan grounds as a means of insulating judicial selection from political
influence. A desire to minimize overt political involvement in selection of
the NCA’s membership led the Freund Committee to propose a complex,
seniority-based mechanism for selecting its judges from among the active
156. See Judiciary Act of 1925, ch. 229, 43 Stat. 936 (1925); Edward A. Hartnett, Questioning
Certiorari: Some Reflections Seventy-Five Years After the Judges’ Bill, 100 COLUM. L. REV. 1643,
1660–1704 (2000) (recounting the intense lobbying by Chief Justice Taft in favor of a discretionary
docket that culminated in the adoption of the Judiciary Act of 1925, popularly known as the Judges’
Bill).
157. Compare, e.g., Burbank, supra note 152, at 1681 (arguing that the lawmaking powers of
Congress under Article I are sufficient to “enable Congress to make prospective law throughout the
broad field of procedure”), with, e.g., Shugerman, supra note 155, at 971 (locating Congress’s power to
impose a six-vote requirement to invalidate federal statutes in the Exceptions Clause of Article III).
158. The exact number of seats on the NCA makes no difference for present purposes; it may be
assumed, for the sake of convenience, that there are to be seven seats, as originally proposed by the
Freund Committee. See FED. JUDICIAL CTR., supra note 132, at 591.
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ranks of the circuit courts.159 The idea of delegating judicial selection to a
nonpolitical actor appeals to precisely the same impulse.
Delegation also enables the ruling party to disclaim responsibility for selecting the members of the NCA, and to avoid the additional political costs
involved in appointing an entire slate of liberal judges for life. Each effort to
appoint a judge via the advice-and-consent process160 gives the opposition a
discrete opportunity to stall and a concrete target to attack. Thus, as a tactical
matter, the wiser strategy may be to introduce the NCA in a single legislative
stroke, complete with a mechanism for selecting its membership, with just one
potential filibuster to overcome and no naming of specific individuals against
whom opposition can be rallied.
The long-term strategic advantages of delegation are even greater. To remove
future decisions regarding the membership of the NCA from the shifting realm
of electoral politics is to render the composition of the NCA unresponsive to
political regime change, which is precisely what an ideological entrenchment
strategy aims to achieve. Not all forms of delegation are equally well suited,
however, to achieving this goal. Of the two varieties of delegation that have
proven popular in the past—delegation to a merit commission and delegation to
the Judiciary itself—the latter is much more conducive to entrenchment than the
former.
1. Delegation to a Merit Commission
The idea of entrusting judicial selection to an independent body that considers only the merit of candidates holds such appeal that it has been implemented
not only by a majority of states,161 but also at the federal level. The Carter
Administration adopted a system of merit commissions for identifying federal
circuit court nominees,162 and merit commissions continue to be used for the
selection of federal bankruptcy judges.163 As a practical matter, however, the
concept is vulnerable to failure and abuse. The use of merit commissions has
the potential to diminish transparency, and thus create opportunities for even
greater political influence, all in the name of reducing the role of political
159. See id.
160. See U.S. CONST. art. II, § 2, cl. 2 (requiring that the President appoint “Officers of the United
States” “by and with the Advice and Consent of the Senate”).
161. See Lee Epstein et al., Selecting Selection Systems, in JUDICIAL INDEPENDENCE AT THE CROSSROADS: AN INTERDISCIPLINARY APPROACH, supra note 19, at 191, 203 tbl.9.2 (reporting that nearly
three-quarters of states employ some form of ostensibly merit-based selection system that combines
reliance upon a merit commission with nonpartisan retention elections).
162. See, e.g., MICHAEL J. GERHARDT, THE FEDERAL APPOINTMENTS PROCESS 119–20 (rev. ed. 2003);
SHELDON GOLDMAN, PICKING FEDERAL JUDGES: LOWER COURT SELECTION FROM ROOSEVELT THROUGH
REAGAN 238 (1997); Jon Gottschall, Carter’s Judicial Appointments: The Influence of Affirmative Action
and Merit Selection on Voting on the U.S. Courts of Appeals, 67 JUDICATURE 165, 166 (1983).
163. See Jonathan Remy Nash & Rafael I. Pardo, An Empirical Investigation into Appellate
Structure and the Perceived Quality of Appellate Review, 61 VAND. L. REV. 1745, 1768–69 & 1768 n.91
(2008) (describing the Ninth Circuit’s use of local merit screening committees in selecting bankruptcy
judges).
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considerations.164 Both experience at the state level and the track record of
Carter’s judicial appointees suggest that the use of a merit commission neither
prevents partisan or ideological considerations from influencing the selection
process nor leads to the selection of more moderate judges.165
It is easy to devise a merit commission that is facially neutral yet systematically favors liberal candidates. In designing the composition of the commission,
it would seem only natural to draw its members from a cross-section of relevant
legal constituencies—say, perhaps, an equal number of sitting judges, law
professors, and representatives of the organized bar. The composition of the
commission would not be difficult to justify: each of these three groups possesses both relevant expertise and a professional interest in the selection of
judges. There is, moreover, no obvious reason why each group should not have
an equal say, and there is ample precedent for giving the bar in particular a
considerable say.166
What is convenient for present purposes, however, is that two of these three
groups—the organized bar and the legal professoriate—are at least somewhat
left leaning. Conservatives have long argued, and there is at least some empirical evidence to suggest, that the American Bar Association demonstrates a
liberal bias in its assessment of judicial candidates.167 Moreover, if the law
164. See Judith L. Maute, Selecting Justice in State Courts: The Ballot Box or the Backroom?, 41 S.
TEX. L. REV. 1197, 1232–37 (2000) (noting widespread “distrust” that so-called merit selection of
judges “moves the politics from out in the open, to the privacy of the backroom”).
165. Notwithstanding his use of merit commissions, Carter’s judicial appointees turned out on
average to be more liberal than those of either the Republican or Democratic presidents who preceded
and succeeded him. It surely did not hurt matters that the White House remained responsible for the
selection of the commission members themselves. See, e.g., Gottschall, supra note 162, at 169–71.
Likewise, the use of nonpartisan nominating commissions at the state level has not precluded partisan
considerations from coming into play. See, e.g., Stephen J. Ware, Selection to the Kansas Supreme
Court, 17 KAN. J.L. & PUB. POL’Y 386, 393 (2008) (noting that, when faced with a short list of
candidates for the Kansas Supreme Court produced by the nominating commissions, Kansas’s governors have overwhelmingly chosen a candidate from the same party whenever one is available).
166. See, e.g., KATE MALLESON, THE NEW JUDICIARY: THE EFFECTS OF EXPANSION AND ACTIVISM 92–93
(1999) (highlighting the role that the bench and bar have traditionally played in the English judicial
appointments process); ROBERT STEVENS, THE ENGLISH JUDGES 49–50 (rev. ed. 2005) (describing how the
Prime Minister violated expectations in 1996 by passing over the judges’ own choice for the position of
Lord Chief Justice); Law, supra note 31, at 1566–68 (discussing the longstanding role of Japan’s
leading bar associations in selecting candidates for four of the fifteen seats on the Japanese Supreme
Court); Judith L. Maute, English Reforms to Judicial Selection: Comparative Lessons for American
States?, 34 FORDHAM URB. L.J. 387, 409–22 (2007) (describing recent reforms of the English judicial
appointments process and the representation of the bar on the newly formed judicial appointments
commission); Ware, supra note 165, at 386–87 (describing how Kansas “gives the members of its bar
majority control over the selection of state supreme court justices” via the bar’s dominance of the
Supreme Court Nominating Commission).
167. See, e.g., STEVEN M. TELES, THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR
CONTROL OF THE LAW 157–58, 167–71 (2008); Laura E. Little, The ABA’s Role in Prescreening Federal
Judicial Candidates: Are We Ready To Give Up on the Lawyers?, 10 WM. & MARY BILL RTS. J. 37
(2001) (describing the second Bush Administration’s decision to exclude the ABA from prescreening of
judicial nominees); Richard L. Vining, Jr. et al., Bias and the Bar: Evaluating the ABA Ratings of
Federal Judicial Nominees (Mar. 26, 2009) (unpublished manuscript), available at http://papers.ssrn.com/
2011]
HOW TO RIG THE FEDERAL COURTS
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professors on the committee are roughly representative of the ideological
breakdown of the nation’s leading law faculties, they too will be liberal.168 That
leaves only the judicial members of the commission. Assuming arguendo that
each group is allocated three seats on the commission, and that three seats are
therefore reserved for judges, one could make a point of specifying that one of
the three judges must be a Republican appointee or selected by the Republican
leadership, in order to lend the process an appearance of bipartisanship. Needless to say, however, one can reasonably expect that the lone conservative
would be regularly outvoted, and that the commission’s recommendations
would skew consistently to the left.
Consistent with the idea that the selection of the NCA’s judges should be
nonpartisan, the legislation creating the merit commission could require the
Senate to vote on the commission’s slate of nominees as an indivisible whole.
Reforms of this variety have been suggested in the past, invariably with the
stated goal of de-escalating conflict over federal judicial appointments by
ensuring that liberals and conservatives alike must take the bitter with the
sweet.169 In practice, however, such a reform would most likely work to the
disadvantage of the minority party. Not only would it give the selection process
a veneer of bipartisanship, but it would also leave the opposition only one
opportunity either to rouse public opposition to the nominees or to mount a
filibuster. Moreover, the bundling of multiple nominees, combined with the
limited attention span of the public, would presumably make it harder for the
opposition either to focus attention on a particular nominee or to convince the
public that the slate as a whole should be defeated simply because a particular
nominee happens to be objectionable.
Even if a merit commission might produce a suitable initial slate of
appointees, however, delegation to a merit commission is unlikely in the
long term to serve the goal of entrenchment. First, a future conservative
government would presumably seek to appoint conservatives to the merit
commission and thereby transform the commission from a source of resistance to an instrument of influence. Second, even if it is possible to insulate
the merit commission from overt political control, the Appointments Clause
does not allow the appointment of either principal or inferior “Officers of
the United States” to be vested in a nongovernmental body such as a merit
sol3/papers.cfm?abstract-id⫽1368891 (finding empirical evidence of “some systematic bias” on the
part of the ABA in favor of Democratic nominees, especially in the conferral of the “Well Qualified”
rating).
168. See infra section V.A (citing evidence that elite law faculties skew strongly Democratic, and
noting that they tend to retain the same ideological character over time because they are responsible for
selecting their own replacement members).
169. See, e.g., Walter Dellinger, Op-Ed., Broaden the Slate, WASH. POST, Feb. 25, 2003, at A23
(proposing that the White House invite members of the opposition party in the Senate to participate in
selecting an indivisible slate of nominees); E.J. Dionne Jr., Editorial, Order and the Courts, WASH.
POST, May 9, 2003, at A35 (describing Democratic Senator Charles Schumer’s proposal to set up
bipartisan nomination commissions).
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commission.170 Given the considerable discretion and power exercised by
federal appellate judges, the members of the NCA surely qualify as either
inferior or principal “Officers of the United States,” as opposed to mere
government employees, for purposes of the Appointments Clause.171 Accordingly, any merit commission or other body that might be created for
purposes of judicial selection would most likely be constitutionally restricted to acting in an advisory capacity, with the result that a future
conservative government would remain free to reject its recommendations.
2. Delegation to the Judiciary
A more promising approach, from a strategic perspective, is to delegate the
selection of the NCA’s membership to the Judiciary itself. In countries with
career judiciaries, such as Japan, it is common for the responsibility of appointing and promoting judges to fall upon the judges themselves.172 Yet the American Federal Judiciary is characterized by a significant degree of judicial selfselection as well. Magistrate judges,173 bankruptcy judges,174 and certain tax
judges,175 for example, are all appointed by other judges. The Constitution does
not necessarily prohibit such arrangements: the Court has indicated that certain
judges can, for purposes of the Appointments Clause, be considered “inferior
Officers” whose appointment may therefore be vested in the “Courts of Law.”176
It is doubtful whether appointment of NCA judges could be delegated to the
Judiciary on precisely the same constitutional basis. To be sure, the line between
170. U.S. CONST. art. II, § 2, cl. 2 (specifying that principal “Officers of the United States” are to be
appointed by the President with the advice and consent of the Senate, whereas the appointment of
“inferior Officers” may be vested by Congress “in the President alone, in the Courts of Law, or in the
Heads of Departments”).
171. Compare Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 880–82 (1991) (holding that
Tax Court “special trial judges” with the power to “take testimony, conduct trials, rule on the
admissibility of evidence, and . . . enforce compliance with discovery orders” “perform more than
ministerial tasks” and therefore cannot be deemed “mere employees” or “lesser functionaries” but
instead constitute “inferior Officers” for purposes of the Appointments Clause), with Auffmordt v.
Hedden, 137 U.S. 310, 326–27 (1890) (concluding that a “merchant appraiser” who appraised goods on
an ad hoc basis for purposes of calculating import duties was neither a principal nor inferior “officer”
within the meaning of the Appointments Clause because his position was “without tenure, duration,
continuing emolument, or continuous duties, and he act[ed] only occasionally and temporarily”).
172. See supra note 69 (discussing the Chilean, French, and Italian judiciaries); supra Part III
(describing the appointment and promotion mechanisms of the Japanese judiciary).
173. 28 U.S.C. § 631 (2006) (authorizing district court judges to appoint magistrate judges).
174. 28 U.S.C. § 152(a) (2006) (authorizing the circuit courts to appoint bankruptcy judges); Tuan
Samahon, Are Bankruptcy Judges Unconstitutional? An Appointments Clause Challenge, 60 HASTINGS
L.J. 233, 244–47 (2008) (describing the reasons for which Congress chose to vest this responsibility in
the circuit courts).
175. Freytag, 501 U.S. at 880–92 (holding that the power to appoint “special trial judges” in tax
proceedings may be vested in the Chief Judge of the Tax Court, an Article I court, because “special trial
judges” are “inferior Officers” and the Tax Court is a “Court[] of Law” for purposes of the Appointments Clause).
176. See U.S. CONST. art. II, § 2, cl. 2; Freytag, 501 U.S. at 880–92 (upholding the appointment of
“special trial judges” by the Chief Judge of the Tax Court as consistent with the Appointments Clause).
2011]
HOW TO RIG THE FEDERAL COURTS
819
“principal” and “inferior” officers is, by the Court’s own admission, “far from
clear,”177 and one might exploit this confusion to argue that NCA judges are
inferior officers who, like bankruptcy or magistrate judges, are eligible for
appointment by the “Courts of Law” in lieu of nomination by the President and
confirmation by the Senate. Such an argument would presumably emphasize the
relevant consideration that the NCA would be “to some degree ‘inferior’ in rank
and authority” to the Supreme Court.178 Even in the unlikely case that such a
scheme could be reconciled with the Appointments Clause, however, the objections arising under Article III would be grave.179
A more elegant solution—one that would not only address these constitutional concerns, but also advance the goal of entrenchment—would be to follow
the lead of the Freund Committee and provide that members of the NCA are to
be selected from the ranks of the existing Article III Judiciary.180 The assignment of additional judicial duties to existing Article III judges is an everyday
occurrence that has not been thought to trigger the requirements of the Appointments Clause at all. The constitutionality of such practices as designating
district judges and senior judges to sit on other courts181 and requiring Supreme
Court Justices and district judges to ride circuit,182 for example, is by now
177. Morrison v. Olson, 487 U.S. 654, 671 (1988); see id. at 671–72 (holding that an independent
counsel is an “inferior officer” because, inter alia, she is subject to removal by a higher official, her
position is temporary, and her jurisdiction is limited in scope).
178. Id. at 671 (emphasizing that an independent counsel is “to some degree ‘inferior’ in rank and
authority” to the Attorney General and concluding partly on that basis that an independent counsel is an
“inferior officer”); see also United States v. Raddatz, 447 U.S. 667, 681–84 (1980) (holding that the use
of magistrate judges to prepare proposed findings of fact “does not violate Art. III so long as the
ultimate decision is made by the district court”).
179. It is awkward to suggest, for example, that Article III courts could be subjected to plenary
appellate review by a court consisting entirely of “inferior officers.” It is also questionable whether
“inferior officers” appointed without presidential nomination or Senate confirmation could qualify as
Article III judges. If the members of the NCA are not Article III judges, it becomes extremely difficult
to argue under existing case law that the NCA could exercise appellate review over the full range of
cases heard by the lower federal courts. See, e.g., Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 51–56
(1989) (holding that non-Article III tribunals may not decide cases involving “private rights,” such as
the right of a bankruptcy trustee to assert claims that “resemble state-law contract claims”); N. Pipeline
Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 57–87 (1982) (plurality opinion) (ruling that
Article I bankruptcy judges may not exercise jurisdiction over traditional common law claims);
Raddatz, 447 U.S. at 677–84 (1980) (holding that the holding of evidentiary hearings by magistrate
judges is consistent with Article III because “the entire process takes place under the district court’s
total control and jurisdiction”); Samahon, supra note 174, at 242–43 (discussing Northern Pipeline).
180. See FED. JUDICIAL CTR., supra note 132, at 591.
181. See Tracey E. George & Albert H. Yoon, Chief Judges: The Limits of Attitudinal Theory and
Possible Paradox of Managerial Judging, 61 VAND. L. REV. 1, 30, 49 (2008) (noting that the powers of
a circuit court chief judge include those of designating district judges to sit on the circuit and managing
the participation of senior judges); David R. Stras & Ryan W. Scott, Are Senior Judges Unconstitutional?, 92 CORNELL L. REV. 453, 467–68 (2007) (observing that senior judges may end up serving
mostly or entirely on courts other than their own).
182. See Judiciary Act of 1789, 1 Cong. Ch. 20, § 4, 1 Stat. 73, 74–76; Stuart v. Laird, 5 U.S. (1
Cranch) 299, 309 (1803) (rejecting the argument that Supreme Court Justices must be given “distinct
commissions” as circuit judges before Congress may assign them to sit on circuit courts); David R.
Stras, Why Supreme Court Justices Should Ride Circuit Again, 91 MINN. L. REV. 1710, 1719–21,
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settled. Indeed, in some cases, not only have courts been staffed entirely with
judges borrowed from other courts, but the selection of those judges has itself
been delegated to the courts. By statute, the members of both the Foreign
Intelligence Surveillance Act (FISA) Court183 and the now-defunct Temporary
Emergency Court of Appeals (TECA)184 are selected by the Chief Justice from
the ranks of the existing Article III Judiciary without any presidential or
congressional input. Unless the constitutionality of these courts is to be called
into question, one must conclude either that their members count as “inferior
Officers” who may therefore be appointed by the “Courts of Law,” or that the
requirements of the Appointments Clause do not apply at all to cross-court
appointments within the Article III Judiciary.185
Constitutional issues aside, however, there remains a difficult practical
question of where exactly in the Article III Judiciary the selection power
ought to be vested. If the Judiciary as a whole is conservative—as our
hypothetical scenario assumes—then the most obvious candidates to wield
the power of appointment are disproportionately likely to be conservative as
well. Consider, for example, the difficulty of finding an ideologically suitable candidate from the actual federal bench as of this writing. The single
most obvious candidate is the Chief Justice, who has historically been given
responsibility by Congress for selecting the members of such judicial bodies
as the FISA Court,186 the Judicial Panel on Multidistrict Litigation,187 the
1743–44 (2007) (observing that “the constitutionality of circuit riding has been settled for over two
hundred years”).
183. See 50 U.S.C. § 1803(a)–(b), (d) (2006); Theodore W. Ruger, Chief Justice Rehnquist’s
Appointments to the FISA Court: An Empirical Perspective, 101 NW. U. L. REV. 239 (2007).
184. The Economic Stabilization Act of 1970 conferred upon the Temporary Emergency Court of
Appeals the same powers possessed by any other federal court of appeals and directed the Chief Justice
to select its members from the existing ranks of the district and circuit courts. See Alan B. Morrison &
D. Scott Stenhouse, The Chief Justice of the United States: More than Just the Highest Ranking Judge,
1 CONST. COMMENT. 57, 61 (1984); History of the Federal Judiciary: Temporary Emergency Court of
Appeals, 1971–1992, FED. JUDICIAL CTR., http://www.fjc.gov/history/home.nsf/page/courts_special_
tecoa.html (last visited Oct. 3, 2010).
185. There is a potentially relevant distinction for purposes of the Appointments Clause between the
NCA judges, on the one hand, and the FISA and TECA judges, on the other, and that is the extent to
which NCA judges may insulate their own judgments from Supreme Court review by refusing to certify
cases for appeal to the Supreme Court. The FISA and TECA judges may be categorized as “inferior
Officers” in part because the judgments of both courts are subject to review without restriction by the
Supreme Court, thus rendering them subordinate in both form and substance to the Supreme Court. See
50 U.S.C. § 1803(b) (requiring the FISA Court to transmit the record under seal to the Supreme Court
in the event that a certiorari petition is filed); Economic Stabilization Act Amendments of 1971, Pub. L.
No. 92-210, § 211, 85 Stat. 743, 750 (expired 1982) (providing that judgments of the TECA are subject
to review by the Supreme Court “in the same manner as a judgment of a United States court of
appeals”). Nevertheless, in defense of the NCA’s “inferior” status, it can still be said that its judgments
remain formally subject to review by the Supreme Court, notwithstanding the appeal certification
requirement. As a last resort, if the certification requirement proves fatal to the classification of NCA
judges as “inferior Officers,” reliance could be placed in the alternative upon the proposed Rule of
More than Four to effectively insulate the NCA’s judgments from Supreme Court review. See supra
section IV.A.2.
186. 50 U.S.C. § 1803(a).
2011]
HOW TO RIG THE FEDERAL COURTS
821
now-defunct TECA,188 and the equally defunct Special Division of the D.C.
Circuit once responsible for appointing independent counsels.189 An ideological bias on the part of the NCA could no doubt be ensured by vesting Chief
Justice Roberts with the power to select its initial membership, but it would
be the wrong ideological bias.
Another logical set of candidates to whom the power of selecting the NCA’s
membership might be entrusted consists of the chief judges of the federal courts
of appeals. If the power to designate existing Article III judges to sit on a newly
constituted Article III court can be vested in the Chief Justice, there is no
obvious reason why that power cannot be vested in the chief judge of one of the
federal courts of appeals instead. The Appointments Clause provides in general
terms that the power to appoint “inferior Officers” may be vested in the “Heads
of Departments” and the “Courts of Law” more generally. If the Chief Justice
constitutes either a “Head of Department” or “Court of Law” for purposes of
appointing inferior officers, so too should the chief judge of the First Circuit.
Indeed, the chief judges of the various circuits already wield a range of
institutional powers over the staffing of Article III courts that include the
selection of district judges to sit by designation on the circuit courts, the
management of the participation of senior judges, and the control of three-judge
district court panels.190
The difficulty is, of course, that not only the Chief Justice’s seat, but also
most other positions of leadership in the Judiciary, might be held by relatively
conservative judges. The current chief judge of the D.C. Circuit, for example, is
ideologically unsuitable.191 So too is the current chief judge of the Ninth
Circuit, the nation’s largest circuit court.192 A plausible alternative might be the
chief judge of the Federal Circuit. There is at least some precedent for propos-
187. 28 U.S.C. § 1407(d) (2006).
188. § 211, 85 Stat. at 749.
189. 28 U.S.C. § 49 (2006).
190. See George & Yoon, supra note 181, at 30–31.
191. Anecdotal reports and empirical research alike leave little doubt that Chief Judge David
Sentelle, a Reagan appointee, is one of the most conservative members of his court. See, e.g., Frank B.
Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on
the Federal Courts of Appeals, 107 YALE L.J. 2155, 2175 & n.74 (1998) (noting then-Judge Sentelle’s
reputation for “staunch conservatism” and the controversy surrounding his ex parte contact with
Senators Helms and Faircloth prior to the replacement of Robert Fiske with the “presumably more
aggressive” Kenneth Starr as Whitewater special prosecutor); Richard L. Revesz, Environmental
Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717, 1760 n.86 (1997) (finding that
then-Judge Sentelle’s voting record in environmental cases was more conservative than that of any
Democratic appointee on the D.C. Circuit, and that the difference was statistically significant).
192. Although Chief Judge Kozinski may be a more idiosyncratic conservative than his counterpart
on the D.C. Circuit, ultimately he too is a conservative and a Reagan appointee. See David S. Law,
Strategic Judicial Lawmaking: Ideology, Publication, and Asylum Law in the Ninth Circuit, 73 U. CIN.
L. REV. 817, 857, 858 fig.9 (2005) (estimating then-Judge Kozinski’s ideal point in asylum cases to fall
to the right of the majority of his colleagues on the Ninth Circuit, including a number of fellow
Republican appointees); id. at 852 fig.8 (noting the comparatively low percentage of cases in which
then-Judge Kozinski voted in favor of asylum).
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ing that the Federal Circuit take part in a scheme for helping the Supreme Court
with its case overload: Chief Justice Burger’s own suggestion was to establish a
special, temporary panel of the Federal Circuit to decide intercircuit conflicts.193
Also weighing in favor of this approach is the Federal Circuit’s enjoyment of a
relatively low political profile, owing in no small part to a specialized docket
that gives rise to little basis for criticism on ideological grounds. But both the
current chief judge and his immediate predecessor have been Republican appointees.194
Things do not improve much as one continues down the list. As of this
writing, the heads of the D.C., Second, Fifth, Sixth, Seventh, Eighth, Ninth,
Eleventh, and Federal Circuits were all appointed by Republican presidents.195
Whether it is politically more advantageous for the government to select the
initial members of the NCA itself or to delegate that responsibility to someone
within the Judiciary may depend in part upon whether any of the most obvious
candidates, such as the Chief Justice and the heads of the D.C. and Federal
Circuits, is ideologically suitable and, if not, whether it is possible to muster a
palatable explanation for bypassing them in favor of, say, the chief judge of the
First Circuit.
3. Judicial Self-Replication
Once the new court has been staffed with a suitable initial cohort of
judges, the next challenge is to ensure that the court withstands future
changes in its political environment and maintains its ideological bearings
long after its current members are gone. If the government retains the power
to either directly or indirectly choose the NCA’s members, a reversal in the
political fortunes of the governing party will eventually reverse the direction
of the NCA as well.
Perhaps the best way to ensure that the initial ideological bias of the NCA
193. See Burger, supra note 132, at 447.
194. Chief Judge Michel, a Reagan appointee, retired effective May 31, 2010, and was replaced by
Judge Randall Rader, a George H.W. Bush appointee. See Mike Scarcella, Federal Circuit Chief Judge
Paul Michel Announces Retirement, THE BLT: THE BLOG OF LEGAL TIMES (Nov. 21, 2009, 1:18 PM),
http://legaltimes.typepad.com/blt/2009/11/federal-circuit-chief-judge-paul-michel-announces-retirement.html. Interestingly, although it is a challenge to discern anything resembling a political ideology
from the way in which a judge votes in patent cases, empirical analysis of the voting behavior of
Federal Circuit judges in claim construction cases suggests that both judges are at least in some sense
moderate. See R. Polk Wagner & Lee Petherbridge, Is the Federal Circuit Succeeding? An Empirical
Assessment of Judicial Performance, 152 U. PA. L. REV. 1105, 1160 tbl.4 (2004) (identifying both Chief
Judge Michel and Judge Rader as “swing judges” in claim construction cases).
195. In order, they are: David Sentelle, a Reagan appointee; Dennis Jacobs, a Bush Sr. appointee;
Edith Jones, a Reagan appointee; Alice Batchelder, a Bush Sr. appointee; Frank Easterbrook, a Reagan
appointee; William Riley, appointed by the second Bush; Alex Kozinski, a Reagan appointee; Joel
Dubina, a Bush Sr. appointee; and Randall Rader, a Bush Sr. appointee. The only exceptions as of this
writing are the chief judges of the First, Third, Fourth, and Tenth Circuits, all Clinton appointees:
Sandra Lynch of the First Circuit, Theodore McKee of the Third Circuit, William Traxler Jr. of the
Fourth Circuit, and Mary Beck Briscoe of the Tenth Circuit.
2011]
HOW TO RIG THE FEDERAL COURTS
823
remains both reliable and enduring is to place the most sensitive task of all
under its control—namely, the selection of its own replacement members.
The experience of other countries such as Japan,196 England,197 and Israel198
tends only to confirm that the predictable result of giving the judiciary a
formal role in selecting its own members is to foster ideological consistency
over time.
By what means, then, should the NCA choose its replacement members in
order to best ensure ideological constancy over time? The Japanese approach of
establishing a specialized bureaucratic apparatus for hiring and recruitment
seems both impractical and unnecessary for a small body such as the NCA. Nor
is it necessarily the best idea to vest appointment power exclusively in the chief
judge of the NCA. To do so is to place all of one’s eggs in a single basket. There
is always the possibility that a liberal judge with life tenure will drift, or evolve,
in the way that Hugo Black did, as opposed to the way that Harry Blackmun
did.199 If that one judge is vested with the power to select the court’s members,
the entire court could begin to stray. The likelihood that a majority of the full
court will go awry simultaneously, by contrast, is almost certainly lower. Thus,
from an institutional design perspective, it would be best to rely on a decision
mechanism or practice that will be relatively robust against ideological heterodoxy by one or two members of the court. An ideal mechanism will systematically perpetuate the preferences of the existing majority while frustrating those
of a deviant minority.
Consider, for example, the peculiar self-replicating institution to which all
law professors belong: the law school faculty.200 A faculty is responsible for
selecting its own members, but whether by mistake or by design, it may
196. See supra Part III.
197. See, e.g., J.A.G. GRIFFITH, THE POLITICS OF THE JUDICIARY 17–22 (5th ed. 1997) (describing the
political and socioeconomic homogeneity of the English bench); MALLESON, supra note 166 (noting that
the system of “‘secret soundings’” that was long used in England for selecting judges amounted to a
form of “self-replication” and drew criticism for “excluding good candidates who d[id] not share the
same or similar characteristics” as the judges and senior lawyers whose advice was sought). The
English judicial selection system underwent a dramatic overhaul in 2006. See Constitutional Reform
Act, 2005, c. 4 (Eng.); Maute, supra note 166, at 388–91 (describing the magnitude of the changes
wrought by the Constitutional Reform Act, including a move away from the practice of “‘secret
soundings’” toward “modern personnel practices”).
198. See, e.g., HIRSCHL, supra note 41, at 66–68 (arguing that the influence of the existing Israeli
judiciary over the selection of judges helps to explain the judiciary’s consistently liberal bent); Shimon
Shetreet, Judicial Independence and Accountability in Israel, 33 INT’L & COMP. L.Q. 979, 992–93
(1984) (noting that Israel’s nine-member judicial appointments committee must by statute include three
members of the Supreme Court and two representatives of the Israeli bar association).
199. Compare Epstein et al., supra note 42, at 1494 fig.2 (graphing Justice Black’s sharp ideological
shift to the right on civil liberties issues during the 1960s, after two decades of initial drift to the left),
with id. at 1494–95 & 1495 fig.3 (graphing Justice Blackmun’s “near complete flip, from one of the
Court’s most conservative members to among its most consistent civil libertarians”).
200. See TELES, supra note 167, at 14 (explaining the greater extent of liberal “entrenchment” in law
schools than in the courts by noting that, “unlike the courts, law school faculties are almost totally
self-reproducing”).
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occasionally select members whose sensibilities, whether intellectual or ideological, do not conform to those of the majority. As a practical matter, an effective
way of disempowering those in the minority is to make decisions on the basis of
simple-majority voting. This technique will be even more effective if the lines
of cleavage within the faculty are relatively constant, thereby foreclosing
opportunities for logrolling. It is no coincidence that faculties tend to maintain a
certain intellectual or ideological character over time.201 Thus, the NCA should
be required to do what many law school faculties already do: it should choose
its replacement members by simple-majority vote. Even if one or two judges
turn out to be (or drift) further to the right than anticipated, it is less likely that a
majority of the full court will do so.
The more general point is that voting rules are a basic but useful tool of
strategic institutional design that are already embedded in a wide variety of
settings and can be adjusted to great effect.202 Simple-majority voting rules, in
particular, are an effective solution to the problem of ideological deviancy or
hidden preferences on the part of a minority: even if one or two members of the
body depart from the chosen path, they will simply be outvoted. This
technique for ensuring ideological consistency can be extended not only to
the selection of replacement members but also to the court’s substantive
decisionmaking. For example, the NCA might also adopt a rule providing that
rehearing en banc can be triggered by the request of a single judge, so as to
reduce the likelihood that decisions by an ideological minority will evade the
control of the majority.
V. REFORM OF THE LAW CLERK SYSTEM
The influence of law clerks is a sensitive topic. It is clear that their role and
responsibilities have only grown over time,203 to the point that judges themselves now describe the relationship as one of unhealthy dependency: in a 1990
survey of federal appeals court judges, 63% reported that they felt no choice but
to rely on their clerks “to do at least some work they believe they should do
themselves.”204 This is not to suggest that judges are unwitting puppets of the
callow youths in their employ. Yet it also defies reason and experience to think
201. See id. (“[W]e would expect law faculties to reproduce themselves ideologically, even in the
absence of an explicit individual desire to discriminate, by defining alternative ideological research
projects as marginal or unimportant.”).
202. See supra note 150 and accompanying text; infra notes 223–25 and accompanying text.
203. See, e.g., TODD C. PEPPERS, COURTIERS OF THE MARBLE PALACE: THE RISE AND INFLUENCE OF THE
SUPREME COURT LAW CLERK 206–09 (2006); RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND
REFORM 140–52 (1996); ARTEMUS WARD & DAVID L. WEIDEN, SORCERERS’ APPRENTICES: 100 YEARS OF
LAW CLERKS AT THE UNITED STATES SUPREME COURT 201–08 (2006); BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 444–45 (1979); Peppers & Zorn, supra note 82, at
55–56.
204. Lauren K. Robel, Caseload and Judging: Judicial Adaptations to Caseload, 1990 BYU L. REV.
3, 44; see also, e.g., FRANK M. COFFIN, ON APPEAL: COURTS, LAWYERING, AND JUDGING 73 (1994)
(“Generally, the concepts of law clerk as citation checker and writer of memoranda and insubstantial
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that no clerk has ever persuaded a judge, on occasion, to tack one way rather
than the other.205 Years before he joined the Court, the late Chief Justice
Rehnquist cleverly split the difference in his own account of their influence,
combining the modest circumspection expected of a former law clerk with a
heavy dose of innuendo about the nefarious influence of liberal law clerks.
Although disclaiming the notion that “a clerk could exercise any sway over the
views of a Justice,” he suggested that “unconscious slanting” of certiorari
memoranda by left-leaning law clerks could manipulate the decisionmaking of
the Justices.206 A recent empirical study suggests that such accounts of law clerk
influence are not merely apocryphal: even if one controls for the demonstrable
tendency of Supreme Court Justices to select ideologically like-minded clerks,207
the clerks nevertheless appear to exert a measurable ideological effect on how
the Justices vote.208
What has received less attention, however, is the structure of the relationship among clerks, judges, and courts and the impact of this structure on
how cases are decided. Law clerks can be reasonably understood as participants in a collective enterprise of judging.209 The manner in which that
enterprise is organized, in turn, necessarily influences the output of the
enterprise as a whole. Discussions of the law clerk system generally take it
for granted that judges select their own clerks, who are in turn entirely
dependent upon the patronage of their judges. But there are, as we have
already seen, alternative forms of organization. In Japan, the SCJ’s clerks
constitute a collective enterprise of their own and owe their fealty not to the
Justices, but to the court as a whole and to the General Secretariat in
particular.210 Likewise, in the United States, federal administrative agencies
opinion drafts have outlived any time when they could fairly be said to reflect reality in most
chambers.”); POSNER, supra note 203, at 151.
205. See, e.g., LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN: HARRY BLACKMUN’S SUPREME COURT
JOURNEY 201–06 (2005) (recounting the overtly political machinations of Justice Blackmun’s law clerks
behind the scenes of the Court’s decision in Planned Parenthood v. Casey); PEPPERS, supra note 203, at
109–12 (noting that Justice Murphy’s dependence on one of his clerks was widely known within the
Court); WARD & WEIDEN, supra note 203, at 151–73, 184–98; WOODWARD & ARMSTRONG, supra note
203, at 444–45 (describing the efforts of law clerks to prevent Justice Brennan from “killing it from the
left” or, in other words, driving away centrist Justices by dissenting); Wahlbeck et al., supra note 82, at
169–70, 172 (citing various dramatic examples of law clerk influence, including one clerk’s origination
of the most famous footnote in constitutional law, footnote four of United States v. Carolene Products,
304 U.S. 144 (1938)).
206. William H. Rehnquist, Who Writes Decisions of the Supreme Court?, U.S. NEWS & WORLD REP.,
Dec. 13, 1957, at 74, 75; see also William H. Rehnquist, Another View: Clerks Might “Influence” Some
Actions, U.S. NEWS & WORLD REP., Feb. 21, 1958, at 114, 116.
207. See William E. Nelson et al., The Liberal Tradition of the Supreme Court Clerkship: Its Rise,
Fall, and Reincarnation?, 62 VAND. L. REV. 1749, 1793–95 (2009) (documenting the extent to which
former Supreme Court clerks follow ideologically distinctive career paths that match the ideological
leanings of the specific Justices for whom they worked); Peppers & Zorn, supra note 82, at 67 fig.3.
208. See Peppers & Zorn, supra note 82.
209. Cf. TELES, supra note 167, at 13 (observing that “judges can reasonably be understood as an
‘enterprise’ that includes their clerks”).
210. See supra section III.A.3.
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historically employed centralized opinion-writing staffs, although that practice has fallen out of favor.211 Even today, federal courts make use of both
staff attorneys and law clerks, and it is not impossible to imagine a world in
which responsibilities are reallocated from the latter to the former. Nor is it
far-fetched to think that law clerks might be made subject to Senate confirmation, as one senator actually proposed.212 Clerks at the European Court of
Human Rights, meanwhile, are more akin to United Nations bureaucrats:
they are hired not by the Court itself, but by the Council of Europe, on the
basis of examinations and a national quota system.213
These organizational variables beg to be exploited by an ideological entrenchment strategy. On the one hand, the greater the demands upon a court, the more
susceptible the court should be to strategies that manipulate the resources that it
needs in order to do its work. A court that faces heavy demands upon its time
will experience a greater need for, and exhibit heavier reliance upon, the
assistance of law clerks, staff attorneys, and the like. On the other hand, law
clerks tend to be young, ambitious types whose temporary responsibilities are
but a stepping stone to greater things. With one eye fixed firmly on the future,
they are likely to be more vulnerable to career incentives and various forms of
manipulation than the judges for whom they work. Thus, for example, the SCJ’s
overwhelming docket effectively translates the General Secretariat’s control
over the selection and professional advancement of the court’s law clerks into
influence over the SCJ itself.
There are two steps that might be taken to turn the institution of the law
clerk into an instrument of ideological entrenchment. Both will sound
familiar. The first step is to place the selection of law clerks in the hands of
an ideologically like-minded, self-replicating agent that is unresponsive to
changes in the political environment. The second step is to render the clerks
accountable not to the judges, but rather to a management structure capable
of enforcing ideological conformity via appropriate mechanisms and incentives.
A. SELECTION OF LAW CLERKS
One need not look far for institutional arrangements capable of perpetually selecting liberal law clerks. In this arena, liberals already possess
powerful advantages. Although there are certainly ways to fashion a clerkship selection system with a conservative bias,214 the left enjoys lasting
211. POSNER, supra note 203, at 151–52.
212. See Wahlbeck et al., supra note 82, at 167 (quoting Senator John Stennis’s argument that law
clerks occupied “‘far more important’” positions than “‘undersecretaries and assistant secretaries of the
Executive departments’”).
213. See Interview with Judge of the European Court of Human Rights (Oct. 17, 2009) (name
withheld).
214. For example, one could provide that the initial membership of the clerkship merit commission
described below in section V.A would be selected by Chief Justice Roberts. Alternatively, given the
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HOW TO RIG THE FEDERAL COURTS
827
dominance over some of the informal selection mechanisms already relied
upon by many judges, and these mechanisms are, moreover, inherently
self-replicating. The goal of a liberal entrenchment strategy should therefore
be not to invent new arrangements out of whole cloth, but rather to
formalize, strengthen, and expand upon existing arrangements that already
tend to instill the desired bias.
The clerk selection mechanisms currently in use are not dictated by
statute but have instead evolved organically in response to the preferences
of the Justices.215 For decades, the practice among many Justices has been to
rely upon a de facto selection committee consisting partly or entirely of law
professors or former clerks.216 This reliance on law professors begs to be
exploited by a liberal entrenchment strategy. A small handful of law schools
produces the lion’s share of the nation’s law clerks,217 and the faculties of
these schools skew strongly Democratic. 218 Moreover, they are selfreplicating and unelected, which means that their ideological composition
current composition of the Court, it is highly plausible that a majority of current Supreme Court clerks
leans to the right. To the extent that this is true, the Court’s current clerks could be given responsibility
for selecting the initial membership of the clerkship merit commission. To deal with the substantial
minority of the Court’s clerks who are liberal, one could further provide that the clerks would make all
selection decisions by a simple-majority vote. See supra note 202 and accompanying text (emphasizing
the usefulness of simple-majority voting rules as a tool for disempowering the ideological minority on
any given decisionmaking body). Either way, the merit commission could thereafter be made responsible for selecting its own replacement members in order to ensure that it retains the same ideological
bias over time. See supra section IV.B.3 (discussing the crucial role of self-replication in an ideological
entrenchment strategy).
215. At present, the relevant statutory provision provides only that the Justices “may appoint law
clerks and secretaries,” without specifying the number that may be hired, the manner in which they are
to be selected, or the applicable salaries. 28 U.S.C. § 675 (2006) (“The Chief Justice of the United
States, and the associate justices of the Supreme Court may appoint law clerks and secretaries whose
salaries shall be fixed by the Court.”). Similarly open-ended provisions govern the hiring of law clerks
by other federal courts. The number of clerks that a judge may hire is in practice decided not by
Congress, but by the Judicial Conference of the United States. See id. § 712 (“Circuit judges may
appoint necessary law clerks and secretaries.”); id. § 752 (“District judges may appoint necessary law
clerks and secretaries subject to any limitation on the aggregate salaries of such employees which may
be imposed by law.”); id. § 794 (“The judges of the United States Court of Federal Claims may appoint
necessary law clerks and secretaries, in such numbers as the Judicial Conference of the United States
may approve for district judges, subject to any limitation of the aggregate salaries of such employees
which may be imposed by law.”); Todd C. Peppers et al., Inside Chambers: How Federal District Court
Judges Select and Use Their Law Clerks, 71 ALB. L. REV. 623, 628 (2008) (“The Judicial Conference
continues to have the authority to dictate the number of clerks that may be hired by each judge as well
as clerk salaries.”).
216. See PEPPERS, supra note 203, at 52.
217. See WARD & WEIDEN, supra note 203, at 73 tbl.2.5 (reporting, inter alia, that 77% of Supreme
Court law clerks during the Rehnquist years came from just seven schools).
218. See, e.g., TELES, supra note 167, at 42 (observing that elite law faculties “are now almost
exclusively Democratic”); John O. McGinnis et al., The Patterns and Implications of Political
Contributions by Elite Law School Faculty, 93 GEO. L.J. 1167, 1175 tbl.1a (2005) (documenting the
proportion of law professors at elite schools who made financial contributions to Democratic as
opposed to Republican candidates).
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tends to be “only weakly coupled with the cycles of electoral politics.”219
Steven Teles thus characterizes them as part of an entrenched liberal legal
network capable of influencing legal elites and thus shaping policy even in
times of conservative domination of electoral politics: like certain professional associations and segments of the bar, they are “sites for attempting to
temporally extend a partisan coalition.”220
In other words, from the perspective of a liberal entrenchment strategy, elite
law faculties are ideal institutions to entrust with the selection of law clerks.
First, they constitute an oligopoly when it comes to the training of future law
clerks. Second, much like the General Secretariat’s hand-picked instructors at
the Legal Training and Research Institute in Japan,221 they enjoy ample opportunity to engage in both screening and indoctrination. Third, they tend to be
reliably liberal and, owing to the fact that they choose their own replacements,
they are likely to remain that way.
There are a number of ways in which the role of elite law faculties in clerk
selection might be both formalized and strengthened. To illustrate how it might
be done, imagine that Congress provides by statute for the creation of a
clerkship merit commission, consisting of representatives from each of the
leading clerk-producing schools, that would have responsibility for recommending clerkship candidates.222 The representatives would not be appointed by the
government, as the composition of the committee might shift to the right under
a Republican government. Instead, each representative would be elected by the
faculty of the school in question. The rules of the commission, in turn, would be
designed to reduce the likelihood that a conservative minority of any given
faculty would be able to elect its preferred candidate. The risk of unwanted
conservative representation on the commission would be especially high in the
event that a school with any meaningful degree of ideological heterogeneity on
its faculty is entitled to elect more than one representative to the commission—as might be appropriate for, say, Harvard, given the sheer number of
clerks that it produces—and opts to choose its representatives using some kind
of proportional representation system.223 A simple solution is to mandate that no
representative can be elected to the commission with the support of less than
219. See TELES, supra note 167, at 12.
220. Id. at 11.
221. See supra text accompanying notes 70–71.
222. Selection of the merit commission’s members from the schools that currently produce the most
clerks would likely have the collateral effect of entrenching those schools as the leading clerk
producers. The schools themselves would presumably foresee this outcome and thus support creation of
the commission.
223. A proportional representation system is “[a]ny scheme which seeks to ensure that each faction,
group, or party in the electing population is represented in the elected assembly or committee in
proportion to its size.” THE CONCISE OXFORD DICTIONARY OF POLITICS 438 (Iain McLean & Alistair
McMillan eds., 3d ed. 2009).
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HOW TO RIG THE FEDERAL COURTS
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half of the relevant faculty.224 Likewise, in order to deal with the possibility that
a couple of elite schools might conceivably elect conservative representatives,225 the commission would make all of its decisions on the basis of
simple-majority voting, so as to ensure that any conservative minority is
consistently defeated.
Finally, because it might prove awkward to place the selection of public
employees in the hands of private actors, the merit commission would not be
formally responsible for the actual hiring of law clerks. Instead, it would
recommend a slate of candidates encompassing every clerkship vacancy to the
NCA, which would have final say over both the appointment and removal of
clerks. Legally, the NCA would have discretion to reject the merit commission’s
recommendations, but given that it would be ideologically in sync with the
commission, there is no obvious reason why it would do so.
The idea of a merit commission for selecting law clerks borrows deliberately
from the Carter Administration’s practice of relying upon nominating commissions to select circuit court nominees, which was done for the stated purpose of
placing merit ahead of political patronage.226 Similarly idealistic-sounding
justifications can easily be offered for the clerkship merit commission. The
argument would go something like this. As Chief Justice Roberts has helpfully
explained, judges are supposed to be nothing more than umpires.227 Accordingly, it is unjustifiable for them to employ ideology as a criterion in selecting
224. For an example of how this type of voting scheme produces the desired effect of denying
representation to a conservative minority, consider the electoral scheme upheld by the Supreme Court
in City of Mobile v. Bolden, 446 U.S. 55 (1980), superseded by statute, Voting Rights Act Amendments
of 1982, Pub. L. No. 97-205, 96 Stat. 134. The three members of Mobile’s city commission were
elected from the city at large, rather than from three separate districts, and no candidate for any of the
three seats could be elected without a majority of the total vote. See id. at 59–60. The overall effect of
the scheme was to prevent geographically concentrated minorities, such as blacks, from determining
who would win any of the three seats, as they might have been able to do under either a scheme of
multiple districts or a proportional representation system. See id. at 58.
225. See McGinnis et al., supra note 218, at 1205 tbl.I-A (identifying the University of Virginia and
University of Chicago as having law faculties with an above-average proportion of donors to Republican candidates).
226. See Gottschall, supra note 162, at 166–67; Law, supra note 5, at 488; supra notes 162–65 and
accompanying text (discussing the use of merit commissions in judicial selection and the actual
characteristics and consequences of supposedly merit-based selection mechanisms).
227. The analogy drawn by now-Chief Justice Roberts between judges and umpires at his confirmation hearing has attracted a fair amount of scholarly commentary, most of it unfavorable. See, e.g.,
RICHARD A. POSNER, HOW JUDGES THINK 78 (2008) (arguing that “[n]either [Chief Justice Roberts] nor
any other knowledgeable person actually believed or believes” the umpire analogy); Erwin Chemerinsky, Seeing the Emperor’s Clothes: Recognizing the Reality of Constitutional Decision Making, 86
B.U. L. REV. 1069, 1069–70 (2006) (deeming it “hard to think of a less apt analogy,” and asking why
“Chief Justice Roberts, who obviously knows better, [would] use such a disingenuous analogy”); Neil
S. Siegel, Umpires at Bat: On Integration and Legitimation, 24 CONST. COMMENT. 701, 701–03 (2007)
(arguing that the analogy proved politically popular, even though it was highly “inapt,” because it
“tapped into powerful myths” about what people “want to think” judges do). But see William H. Pryor
Jr., The Perspective of a Junior Circuit Judge on Judicial Modesty, 60 FLA. L. REV. 1007, 1013–14
(2008) (drawing heavily upon the “umpire” analogy to construct a conception of the virtue of “judicial
modesty”).
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clerks. Yet empirical research now confirms an ugly reality that many have long
suspected: when selecting law clerks, judges do in fact allow ideology to
influence their choices, and these clerks, in turn, influence the judges.228 Such
practices merely facilitate ideological high jinks and fuel the politicization of
what should be the objective enterprise of judging. It is therefore imperative that
clerkship selection be conducted on the basis of merit rather than ideology. And
what better way is there to identify the best and brightest than to rely upon the
professoriate of the elite schools that, by definition, produce the best and the
brightest? Law professors are obviously best positioned to identify meritorious
clerkship candidates, owing both to their experience and their firsthand knowledge of the candidates; indeed, the extent to which judges already rely upon
them informally to do so attests to this fact.
The irony of this argument renders it especially awkward for conservatives to
rebut: not only does it introduce an enduring liberal bias in the name of
eliminating ideological bias, but it does so by appropriating and deploying
conservative rhetoric about the nature of judging.229
B. CONTROL OF LAW CLERKS
Law clerks are a convenient instrument for influencing the federal courts
because, not surprisingly, it is easier to manipulate a law clerk than a federal
judge. Whereas federal judges enjoy life tenure, have already developed their
own professional reputations, and are less likely to regard their current positions
as stepping stones to something greater, law clerks are mostly temporary
employees at the very beginning of very promising careers. As a result, they are
highly responsive to professional incentives. Whoever controls a clerk’s future
professional opportunities—ranging from another clerkship at a more prestigious court, to an attractive position in teaching or government, to lucrative
bonuses in the private sector230—also controls the clerk’s behavior. Current
institutional arrangements ensure that this fact works to the benefit of individual
judges. Because the judges alone are responsible for hiring and firing their own
clerks and for evaluating the clerks’ on-the-job performance, clerks have ample
incentive to tender faithful service to their judges.
The responsiveness of clerks to professional incentives is, however, a doubleedged sword. It means that, in order to gain effective control over the clerks,
one need only gain control of the incentives to which they are responsive. The
228. See supra notes 207–08 and accompanying text.
229. See TELES, supra note 167, at 180 (pointing out the tension between the conservative attachment to an “understanding of the rule of law as something that transcends the ideological conflicts of
the day,” on the one hand, and the conservative efforts to “expose the ‘hidden’ ideological bias behind
the ABA and America’s law schools,” on the other); supra note 227 and accompanying text (discussing
the notion, championed publicly by Chief Justice Roberts, that judges are obligated to decide, and
capable of deciding, difficult legal questions in an impartial and objective fashion).
230. See Peppers & Zorn, supra note 82, at 55 (noting the immensity of the clerkship bonuses paid
by law firms to former Supreme Court clerks).
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HOW TO RIG THE FEDERAL COURTS
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control that judges currently enjoy over these incentives may be taken for
granted, but it is far from being written in stone. If one wishes to turn law clerks
into an instrument of ideological influence over a court, the obvious thing to do
is to make them accountable not to individual judges—many of whom may be
ideologically deviant—but rather to an ideologically reliable actor. Thus, in the
Japanese case, the cho៮ sakan are a conservative influence on the SCJ because
they are selected by, and accountable to, the General Secretariat as opposed to
the Justices themselves. In the present context, either the merit commission or
NCA could serve the same purpose as the General Secretariat: by design, both
institutions are reliably liberal, insulated from the vicissitudes of electoral
politics, and self-replicating. Insofar as it makes sense to vest selection, oversight, and evaluation responsibilities in the same body, the clerks might be made
accountable to the merit commission in particular.
Because the clerks have been selected by the merit commission, they will
almost certainly be liberal. Accordingly, for the most part, they need only be
encouraged to behave in ways that they are already inclined to do. The main
goal of an appropriate institutional design strategy will therefore be to give
them both the incentives and the wherewithal to resist, confront, and perhaps
even bully into submission judges who might otherwise reach the wrong results.
At the same time, however, it is also prudent to introduce oversight and
evaluation mechanisms to ensure that clerks are neither shirking their duties nor
being co-opted by conservative judges.
How exactly might these goals be achieved? Much can be learned from the
Japanese approach to ensuring that law clerks serve the bureaucracy without
deviation and act as a constraint upon the Justices. The design of the cho៮ sakan
system simultaneously maximizes the clerks’ (1) independence from the Justices, (2) influence over the Justices, and (3) dependence upon the General
Secretariat. This design strategy can be broken down into five components. The
first is administrative selection and assignment of the clerks: the cho៮ sakan are
selected by the General Secretariat and are not assigned to any specific Justice
but rather to the court as a whole.231 The second is administrative control of
career opportunities: cho៮ sakan who do not perform to the liking of the General
Secretariat risk professional oblivion and personal hardship in the form of
assignment to a family court in a remote area.232
The third component is the requirement of group decisionmaking. The fact
that the cho៮ sakan are required to discuss important cases as a group and to
present the Justices with the conclusions of the group to the exclusion of their
individual views, both prevents individual clerks from deviating and strengthens
the influence of the clerks by presenting a united front to the Justices.233 In
addition, the fact that the clerks decide amongst themselves how to divide the
231. See supra text accompanying notes 83–93.
232. See supra text accompanying notes 76–81.
233. See supra text accompanying notes 95–96.
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cases protects their collective influence by denying the Justices any opportunity
to steer particular cases to specific clerks.
The fourth component of the strategy is a management structure that monitors
compliance and evaluates performance. The jyo៮ seki cho៮ sakan and shuseki
cho៮ sakan review the work product of the clerks both to ensure that it conforms
in important cases with the conclusions of the group and to assist the General
Secretariat in evaluating the clerks themselves.234 Finally, the last part of the
strategy is the withholding of assistance from nonconforming Justices. As if it
were not bad enough for the more liberal members of the SCJ that they
regularly find themselves on the losing side, they cannot even call upon the
clerks to draft dissenting opinions for them.235
With appropriate modifications, each of these techniques could be applied
here. The underlying goals are the same here as in Japan—namely, to maximize
the independence of the clerks from the judges, and to enhance the influence of
the clerks over the judges, while at the same time subjecting the clerks to
bureaucratic control. In this case, however, the bureaucracy consists of a
commission of left-leaning American law professors. It would be only natural to
make this commission responsible not only for hiring lower court clerks, but
also for deciding which clerks advance to the Supreme Court. Immediately, all
clerks would face a powerful incentive to please not their judges, but rather a
commission of liberal law professors with the power to advance their careers. At
the same time, the judges would lose their monopoly on the evaluation of law
clerks for purposes of advancement: although the merit commission would
solicit input from the judges, it would also perform its own independent review
of each clerk’s work product and gather information from the clerk’s colleagues
in the relevant chambers. The commission could further enhance its leverage
over the clerks by making these evaluations available to potential employers.
The prospect of a favorable evaluation from a committee of professors from
elite law faculties might prove an especially powerful motivator for those
interested in pursuing a teaching career.
The Japanese experience also demonstrates the feasibility and desirability of
combining the Court’s thirty-odd clerks into a single pool that would work for
the Court as a whole. Along Japanese lines, the clerks would be responsible for
dividing the cases amongst themselves, thereby depriving the Justices of the
ability to reward or co-opt individual clerks with favorable case assignments.
And, as in Japan, clerks would be required to table important cases for group
discussion and to present a unified front to the Justices. One or more managing
clerks, designated by the merit commission, would oversee each of these tasks
as well as assist the commission in evaluating the other clerks. Law clerks
would assist with the drafting of majority opinions much as they do now, but
they would not be required to provide drafting assistance when the result would
234. See supra section III.A.3.
235. See supra section III.A.3.
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833
go against the collective judgment of the clerks as a whole. Thus, for example,
they would be under no obligation to help someone like Justice Thomas write
dissenting opinions and, indeed, might even be rewarded professionally for
refusing to do so.
Parts of the Japanese organizational strategy for turning law clerks into an
instrument of bureaucratic control may defy implementation in certain contexts
for logistical reasons. For example, it may not be feasible for circuit courts to
pool their clerks. Unlike either district judges or Supreme Court Justices, circuit
judges sit in different places and on panels of changing composition. It would
be impractical for clerks to travel between judges in different cities simply to
perform routine work. Even if it is necessary, as a practical matter, that circuit
court clerks be attached to specific chambers, it should still be possible to
implement other parts of the strategy. Within a specific judge’s chambers, clerks
can still engage in group deliberation, present a unified front to the judge, and
report on one another to the merit commission. And there are surely other ways
to enhance the influence of the clerks and their independence from the judges: it
might help, for instance, if the law clerks were entitled to communicate their
collective recommendations directly to the entire panel of judges without any
opportunity for prior censorship or revision by any specific member of the
panel.
In conclusion, although the specific techniques practiced by the Japanese
judicial bureaucracy have proven effective, they do not exhaust the possibilities for influencing the courts by redesigning the support systems upon
which judges depend. Whatever protections Article III may confer upon
individual federal judges, the fact remains that the federal courts are structurally vulnerable to manipulation because they are unable to function without
human resources, and some of these resources—such as law clerks—can be
manipulated more effectively and easily than the judges themselves.
CONCLUSION: THE POLICY BIAS OF ORGANIZATIONAL STRUCTURE
There is nothing unique or special about courts as institutions, or the federal
courts in particular, that renders them immune to structural manipulation. The
Federal Judiciary may be a bureaucracy with highly distinctive characteristics,
but it is a bureaucracy nonetheless, and as a bureaucracy, it can potentially be
rigged. The policy stability and political responsiveness of a bureaucracy are
not constants, but instead variables that can be manipulated. Moreover, constitutional protections for judicial independence not only fail to preclude such
manipulation, but can themselves be exploited for even greater effect. There are,
of course, limits to what institutional design can achieve: it is impossible to
sever the link between electoral and judicial politics or to render the courts
permanently and completely unresponsive to political change. Nevertheless, a
carefully crafted scheme can extend the longevity of a government’s influence
over judicial policymaking and hinder subsequent efforts to recapture the
judiciary.
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Given the fever pitch of interest in the ideological balance of the federal
courts, it is reasonable to wonder why we have in practice been spared all but
the most primitive and blatant efforts to rig them.236 Perhaps both parties have
lacked the brute political strength to try their hand at such tactics, or they have
chosen to exercise self-restraint, of either a principled or calculated sort. Or
perhaps they have simply failed to recognize the possibilities. The purpose of
this Article is not, however, to facilitate or encourage actual court-rigging by
pointing out more sophisticated and effective ways to accomplish such deeds.
Indeed, if candid discussion of court-rigging strategies has any effect at all, it
probably serves only to stigmatize such strategies and thus hinder their adoption.
The point of exploring alternative institutional arrangements is, instead, to
draw attention to the consequences of the arrangements that we already
possess and the perils of taking institutional design for granted. All forms of
organization inherently favor certain outcomes over others. As social scientists have repeatedly demonstrated, there is no such thing as an outcomeneutral structure for aggregating preferences and making decisions.237 Rather,
“[t]he politics of structure is like all politics. . . . Some people win and some
people lose.”238 The outcome of political conflict is invariably influenced by
the institutional structure of the forum within which that conflict is resolved.
It may be easy to overlook the significance of the fact that federal judges
choose and employ their own law clerks, for example, rather than share a
collective group of clerks or have clerks chosen for them by an independent
body. But that fact has meaningful substantive consequences. So too does
the reality that a minority of the Supreme Court, rather than a supermajority,
has the power to decide what cases will be reviewed; and so, too, does the
reality that the Federal Judiciary comprises only one intermediate layer of
appellate review.
It is thus a mistake to regard the existing structure of the Federal Judiciary as
either inconsequential or inevitable. But it is also difficult to know what is
potentially significant or problematic about that structure, or what alternatives
are available, without any basis for comparison. Fortunately, there exists a
236. See supra notes 24–27, 37–38 and accompanying text (reviewing efforts to pack and gerrymander various federal courts).
237. See, e.g., MELVIN J. HINICH & MICHAEL C. MUNGER, ANALYTICAL POLITICS 90–113 (1997)
(reviewing the social choice literature on the relationship between voting rules and outcomes); WILLIAM
H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE
THEORY OF SOCIAL CHOICE passim (1982) (discussing at length the “paradox of voting”—namely, the
coexistence of coherent individual preferences with “collectively incoherent choice by majority rule”—
and the ways in which the initial choice of preference-aggregation mechanism determines outcomes);
MAXWELL L. STEARNS & TODD J. ZYWICKI, PUBLIC CHOICE CONCEPTS AND APPLICATIONS IN LAW 93–152
(2009) (offering an introduction to the social choice literature tailored to a legal audience).
238. Moe & Wilson, supra note 40, at 4–5; see also, e.g., Epstein & Knight, supra note 41, at
209–10 (observing that institutional creation and alteration are “strategic choices” that reflect the
“relative influence, preferences, and beliefs” of relevant political actors, and that “designers of
constitutional courts prefer institutional rules that will best serve their long-term political goals”).
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burgeoning literature in the field of comparative judicial politics that aims to
describe and explain the behavior of courts around the world,239 and often does
so with explicit reference to the relationship between judicial behavior and
institutional structure.240 This body of interdisciplinary scholarship deserves
attention for the insights that it contains into the biases and vulnerabilities
concealed within the structure of our own judicial institutions.
239. See, e.g., NATHAN J. BROWN, THE RULE OF LAW IN THE ARAB WORLD (1997); GINSBURG, supra note
41; HILBINK, supra note 69; HIRSCHL, supra note 41; TAMIR MOUSTAFA, THE STRUGGLE FOR CONSTITUTIONAL POWER (2007); RAMSEYER & RASMUSEN, supra note 44; RULE BY LAW: THE POLITICS OF COURTS IN
AUTHORITARIAN REGIMES, supra note 31. Earlier landmarks of the literature include MIRJAN R. DAMAŠKA,
THE FACES OF JUSTICE AND STATE AUTHORITY (1986); MARTIN SHAPIRO, COURTS: A COMPARATIVE AND
POLITICAL ANALYSIS (1981); and STONE, supra note 43.
240. See, e.g., DAMAŠKA, supra note 239 (contrasting “hierarchical” and “coordinate” forms of
judicial organization, and correlating them with “policy-implementing” and “conflict-solving” modes of
judicial decisionmaking, respectively); HILBINK, supra note 69 (arguing that “an autonomous bureaucratic structure, which is supposed to insulate the judiciary from politics, tends to reproduce conservatism and conformity”); RAMSEYER & RASMUSEN, supra note 44 (attributing the ideological conformity
and conservatism of the Japanese judiciary to its abundance of hierarchical disciplinary mechanisms).