CHAPTER SIX
JUDGES: ROBOTS, UMPIRES, OR GODS?
Judges are like umpires. Umpires don’t make the rules; they apply them.
John Roberts1
One of litigation’s grim joys is “impeachment,” an attack on a witness’s credibility.2 Impeachment is not a free-for-all; the process is governed by rules of evidence which, like the rules of civil procedure, criminal procedure, and court practice, are mostly written by judges.3 At the federal level, primary responsibility for drafting for procedural rules (whose name belies their power) resides in the Judicial Conference, a body headed by the Chief Justice—the very position for which John Roberts was auditioning when he testified to the Senate Judiciary Committee that judges “don’t make rules.”4 Thus, judges do make rules—not only procedural rules, but a lot of substantive law: many of the doctrines governing torts, contracts, antitrust, insider trading, and criminal defense are judge-made or were transformed into statutes by legislatures working from judicial precedent. So, ladies and gentlemen of the jury, to visit impeachment upon John Roberts: Was Roberts merely ignorant when he claimed that judges don’t make rules, or was he trying to mislead?
It couldn’t have been ignorance. Roberts is a Harvard-educated litigator who was already sitting on a lower federal court; he knew what judging entailed. As for misdirection, why bother? Even the dimmest senators realize that judges do more than call “balls and strikes.”5 Some suggested that Roberts deployed his umpire metaphor as a coded message; liberal judges had been derided as “activists,” so emphasizing passivity would signal reliable conservatism to the GOP, which controlled the Senate. But again, what was the point? Every senator knew Roberts was conservative: Roberts launched his career in the Reagan White House, had been nominated to a federal judgeship by Bush II, and in just two years had produced such pleasing results that the same president tapped Roberts to replace the recently deceased Chief Justice Rehnquist (himself a Nixon appointee and Roberts’s own mentor). If “umpire” was code, Senate Democrats needed no Enigma machine to crack it.
Clearly, Roberts was doing something else, and it was this: trying to put an unthreatening face on judicial power. In the circumstances of a Court nomination, Roberts’s effort was considerably misplaced, but it partook of a standard, almost reflexive enterprise: judicial myth-making. All judges wrap themselves in myths, whose collective aim is to suggest that when judges don their robes, they shed all human failings, becoming perfect machines for justice: wise, impartial, industrious, ethical, efficacious, apolitical, and restrained. The goal is to divert scrutiny and pressure, because potent as the judiciary is, it’s also quite fragile. Unlike Congress, the judiciary’s greatest powers are self-granted or the products of historical accident, and all federal (and many state) judges wield these powers without electoral validation. Unlike the executive, the judiciary can deploy no force on its own, and lacks budgetary autonomy. Judicial power ultimately draws on the faith people grant judges, and that faith requires a Solomonic myth. And it is a myth, in the sense of a story left unverified. There are surprisingly few mechanisms to screen for Solomonic virtues before judges take the bench, limited means to remove judges who fall short of the ideal, and no simple way to explain that a powerful judiciary is integral to a fair legal system. There are only tales, to help people believe what the system does not really try to prove or guarantee: that judges are excellent guardians of justice. That many judges are good, and some spectacular, does not mean the judiciary itself is perfect or that the judicial mythology doesn’t overreach.
Many judicial myths are not so much lies as embellishments. For example, the picture of judges as functionaries with limited powers—not unlike Roberts’s umpire—has an honest core. The Constitution limits courts to deciding a live “case or controversy,” so judges cannot simply make whatever laws they want, whenever they want; they can only shape law by deciding whichever cases happen to land on their dockets.6 As to individual judges, this is a powerful restraint, but as to the judiciary overall, the case-or-controversy requirement is hardly restrictive. American litigiousness ensures that all important issues will eventually find themselves before some court, and important cases will eventually wend their way to the appellate courts where judges, including the Justices, can solicit opportunities to make law by hinting at areas for future litigation. As for the notion that judges simply decide isolated cases, that’s another partial truth. When the Court decided Citizens United, it formally decided a single matter, but the effects quickly spilled beyond one PAC. (And arguably, the Court decided Citizens United using reasoning unnecessary to resolving the immediate issue—in other words, it was deciding an issue, not a case.)
Judicial decisions are among the most enduring acts of American government: not only are federal judges life-tenured, the entire judiciary is devoted to precedent, making its decisions highly stable. By contrast, acts of Congress and presidents can be unwound by veto/override, by new officeholders often elected with a specific mandate to undo their predecessors’ work, and, of course, by judges. Appellate judges wield more power than they care to admit. And even judges lower in the hierarchy exercise near-plenary powers over their own courts, with extraordinary latitude to shape the course of litigation, supplemented by the open-ended power of contempt, the discretionary authority to punish those who displease or defy the court.* 7 “Limited powers,” then, is the truth, but not the whole truth and nothing but.
One reason judicial mythology is so lovingly tended by the bench is because judicial power is largely self-regulated, fettered only by judges’ own intelligence and integrity, and pushback from colleagues. These are no small things, but they are purely internal controls, and the other branches cannot easily undo judicial work. When a court strikes down a law, an override requires joint action by the legislature and executive, which is tricky enough and, as to core Constitutional rulings, there’s nothing anyone can do short of the flatly impracticable means of amending the Constitution. Nor are there convenient mechanisms by which the incompetent, abusive, or just plain dim judge can be called to account. For federal judges, the Constitution guarantees tenure during “good behavior,” a standard sufficiently vague that federal judges can serve as long as they like. Removing a federal judge against his will requires impeachment, a process so difficult that it has been visited on just fifteen judges in American history.8 And not only are there few external mechanisms to remove failing judges, there are few good internal mechanisms. At most, inferior federal judges can be reversed, or their dockets rejiggered to focus on minor cases where damage can be contained. State judges, often being elected, are more democratically accountable, but this is a weak control, as state judgeships often carry the longest terms in their governments and, being down-ballot positions, re-elections present modest challenges even for judicial specimens whose intelligence and ethics are less than sterling.9
No wonder that judges labor to reconcile the public to these substantial and discretionary powers by presenting themselves as wise arbiters faithful to laws whose meanings are, if not always clear, ascertainable by means of unquestionable rigor. Roberts’s umpire routine merely took part in the larger tradition of judicial rhetoric. Roberts’s schtick got called out only because of the intense scrutiny that attaches to the nation’s highest judicial position. Mostly, judicial mythmaking escapes scrutiny, and judges work hard to keep reality from the public by enforcing a hieratic culture of deference and omertà. But the mythology is partly self-defeating. A profession that cherishes intellectual honesty degrades itself when it shapes its image falsely; this is especially so when certain judicial myths strain reasonable credulity. Worse, many judges believe at least some of their superhuman mythology, fostering overconfidence and the errors that trait always brings, including unwarranted reluctance to examine their own behavior or that of their colleagues. (“Deference” to trial courts and “heeding precedent” from higher courts are, in part, aspects of the mythology: always give a fellow judge the benefit of the doubt and then some.) Assuming the public can stand it, judges should jettison their self-created myths. The judiciary should stand on its record, and if (as is possible) that record isn’t sufficient justification, then the record, not the judicial mythology, should be reinforced.
There is one myth, however, for which judges cannot be held responsible, and it is perhaps the most toxic myth of all: that the American way of judging is normal. The public may assume so, but by global standards, the American judiciary is unusual in almost all its particulars, starting with judicial preparation and selection.
Becoming a Benchwarmer
Although judging is a specialty like neurosurgery and plasma physics, America assumes judging can be picked up on the fly. The most extreme examples are judges who aren’t lawyers: twenty-two states allow the practice, and in eight of them (including Texas and New York) non-lawyers can hand out jail time. Shockingly, only 47 percent of state trial judgeships require a law degree, though these are mostly minor positions; for “general jurisdiction” trial court judgeships the figure is a somewhat more reassuring 79 percent.10 The remaining states do require judges to be lawyers, though as we saw in Chapter 3, law school is not the most robust quality control, and is anyway significantly undermined in the many states that allow judicial elections. So long as a candidate wins the vote, any law degree will do, and judges may be elevated even if bar associations have deemed the candidate “unqualified.”* 11 Voters may even elect lawless candidates, as happened with Roy Moore, when he was returned to Alabama’s highest court despite being previously removed for unethical conduct and defying, of all things, court orders.12 The federal system is not free of embarrassment but, being more prestigious and highly scrutinized, the pedigrees of federal judges are almost uniformly excellent. Excellence, though, is a norm, not a rule. The Constitution requires no educational (or really, any) qualifications of federal judicial candidates and, as recently as 1957, the Supreme Court included a Justice without a law degree.13 Until recently, though, federal judicial candidates have been quite good, and since the Eisenhower years, presidents have employed the American Bar Association’s prescreening before making nominations—save for Bush II and Trump.14 But presidents may nominate whomever they like, and sufficiently partisan and craven Senates can and have confirmed judges whose pedigrees would render them unfit for legal office in other countries.† 15
Even lawyers with outstanding legal educations and rated “qualified” may nevertheless find themselves woefully unprepared for their first years on the bench, because there’s no job that quite prepares any private lawyer to be a judge and no rigorous training program to compensate for that reality. As former federal appeals judge Richard Posner observed, the transition to the bench is “abrupt,” and while judicial education has improved since Posner joined the bench in 1981, it remains weak.16 The Federal Judicial Center notes that “[t]here are no mandatory educational requirements or standards for federal judges,” though it adds hopefully (if vaguely) that “the majority” of judges “take advantage” of the Center’s training programs, which include a “selection of educational publications and DVDs”; the Center also “invites” (but doesn’t require) new judges “to attend two one-week orientation sessions” and perhaps some brief follow-ups.17 So: optional and inadequate. States, by contrast, do generally require training, though programs tend toward the cursory, ranging from a few hours to three weeks. That’s astoundingly brief, considering that manicurists in California must accumulate 400 hours of experience before taking their final licensing examination and striking out unsupervised.18 (Cosmetologists need 1,600 hours, but they’re Supreme Court Justices to the manicurists’ trial judges.)
Unsurprisingly, rookie judges may be completely at sea, not least because even jurisdictions that do require judicial training allow new judges to postpone it. For example, Justices of the Nevada Supreme Court can defer the inconvenience of a four-day seminar for up to two years after taking office.19 (That 2016’s seminar took place in Reno provided no incentive to rush.20) The absence of pre-bench training is a problem for new judges, though for new trial judges most of all, as trial work is perhaps the most alien sort of legal practice, fast-paced and filled with rules many lawyers never encounter in depth, if at all.
The system’s near-total inattention to judicial training has produced some stunning embarrassments. One federal appointee, lacking trial experience, was confounded by routine oral motions, scurrying back to chambers to research basic questions that a trained judge could handle automatically; another recently appointed judge in California has been known to solicit advice from colleagues via text message in open court. Even appellate judges, operating at a slower pace and prepared by a law school curriculum that focuses on appellate law, have significant training gaps. Many appellate judges are appointed directly to their posts and have little or no intuition for how trial courts operate—even though the essential work of appellate courts is to review trial court decisions. This culture of amateurism would be a source of greater social unease were it widely known. No one, for example, would be eager for the family physician to perform heart surgery. But American law, committed to the view that every lawyer can acquire any legal skill, sails along untroubled.
Much of the world would view the American system of judicial (non-)education as bizarre to the point of negligence. Non-Anglophone countries groom future judges as they would candidates for any other profession. In France, the conventional route to judgeship is to obtain bachelor’s and master’s degrees (customarily in legally inclined fields), pass a rigorous screening test, and undertake a further thirty-one months at the École Nationale de la Magistrature.21 French magistrates therefore begin their careers with considerable advantages over their American peers. France’s technocratic system also helps transform the myth of an apolitical judiciary into something closer to a reality. Rank-and-file judges are processed technocratically, based on scores and openings. And while the Élysée nominally appoints high judges (as the White House does), the French executive seeks guidance on whom to appoint from a council dominated by legal professionals, and can only select from a pool of candidates vetted and trained by the judiciary itself.22 Versions of this model, in which judges perform quality control prior to political appointment, prevail in many European peers and also in Japan.23 Moreover, when foreign judges advance, they usually do so on objective bases including experience and test scores, rather than political connections and ideology. Only British-derived systems depart radically from this technocratic mentality, and even within the Anglophone community, America presents an increasingly odd example. In Britain, fortress of ancient and strange traditions, some judges now gain experience as part-timers before making judging a career, and merit-based examinations are becoming an important filter.24 None of this is to suggest that seasoned American judges are incompetent (though a few are). It’s merely to underscore that, in their early years, American judges operate at an unnecessary educational disadvantage and are promoted using more subjective metrics. Contrasted with foreign professional benches, the “apolitical” aspect of American judicial mythology becomes particularly stark.
Indeed, it is because American judges are political that they spend so much time insisting that they are not. The favorite tactic here is for judges to refer to the executive and legislature as the “political branches,” implying that the judiciary is otherwise. This is flatly unbelievable at the state level, where many judges are elected, sometimes with party affiliations listed on ballots.25 Appointments slightly disguise political considerations, though it defies credibility to assert anything less than that politics plays a major role in judicial selection. No president has appointed a cross-party Justice since 1971, when Nixon shoveled Lewis F. Powell, Jr. onto the Court. Party affiliation notwithstanding, Powell was not what anyone would call a flaming liberal; rather, he was a Southern Democrat (“far from a liberal on racial issues,” though he evolved rapidly) and anything but an economic progressive, going so far as to espouse the theory that Ralph Nader’s Unsafe at Any Speed was treasonous to capitalism.26
Judicial politics are no longer as overt and malodorous as they were during the Gilded Age, when hacks and cronies populated courts. Norms have changed and, anyway, the nation’s better law schools churn out enough materiel that executives can always rummage up someone who, while ideologically aligned, has a pedigree sufficiently impressive that accusations of pure partisanship become harder to make. (With exceptions: in 2017, Trump nominated a candidate unable to answer questions about basic courtroom practice; the candidate withdrew under fire.27) Nevertheless, political considerations remain active, and influence detectible. The NRA, for example, offers occasional endorsements and, for top courts, considerable financial support, including a reported $1 million for a PR campaign during Neil Gorsuch’s nomination to the Supreme Court.28 Organizations on different sides of specific interests like abortion, drug legalization, and free speech do the same for their preferred candidates. And in the era of digitized opinions and big data, influence groups feel more confident about what their money will get, avoiding the ideological migration that left some nominators with buyer’s remorse (as happened with Blackmun, Stevens, Souter, and even Rehnquist, to varying degrees).29
Of all the interest groups, none has been as influential as the Federalist Society (“Fed Soc,” in the community). Fed Soc’s defining mission is to tilt the judiciary rightward, and it has been enormously influential; arguably, Fed Soc is the Right’s greatest political success since Nixon’s Southern strategy. The Society grooms a collection of ideologically sympathetic candidates, sometimes starting in law school, and presents its nominees to Republican administrations, making clear that any deviation from the approved roster of debutantes will carry heavy political consequences. Fed Soc has been so successful that, since the 1980s, right-leaning administrations have adopted the group’s judicial lists wholesale; today, when the GOP is in full control, Fed Soc functionally operates as the Senate Judiciary Committee and White House combined.30 Some judges associated with Fed Soc haven’t been shy about returning the favor, as when Neil Gorsuch gave a speech to the Society shortly after becoming a Justice. Gorsuch also gave a talk to a different conservative group, and the dynamics of influence and loyalty may be partly inferred from the reputational risk in giving that speech, as the venue—Trump’s Washington, D.C., hotel—was then at the center of a Constitutional suit against the president.31 Gorsuch’s speeches were not illegal or strictly unethical, though at least one of them was hardly apolitical or well-advised.
Once on the bench, politics continues to play a role (sometimes masquerading as “judicial philosophy”), and this is particularly noticeable among judges auditioning for promotion to higher courts. Auditioners to the Supreme Court, regardless of party, produce more “tough on crime” outcomes relative to other judges with comparable outlooks and profiles; the same seems to be true of district court judges aspiring to appellate positions.* 32 Auditioners’ tough-on-crime performances aren’t exactly exchanges of a few months of a prisoner’s life for better shots at more prestigious judgeships, but neither are they savory. Even judges who can be promoted no further sometimes allow politics to influence their reasoning. Antonin Scalia’s vaunted originalism/textualism famously warbled in and out of tune depending on the case.33 Anthony Kennedy was also accused of practicing issue-specific politics (on matters such as gay marriage), most prominently by Scalia. That was doubly hypocritical of Scalia, given his own inconsistencies and his snark that Kennedy had no philosophy or logic to betray to politics.
By allowing politics to play a major role in judicial selection and by treating judgeships as political offices instead of civil service jobs, America has a judicial pool that is more overtly partisan and less meritocratic than that of most peer countries. Of course, no judge anywhere is entirely apolitical and, for the most part, state judges are no worse than acceptable and federal judges can rarely be described as less than pretty good. But judges are not, self-sponsored myths notwithstanding, umpires without affiliations. We’ll see that they aren’t perfect instantiations of wisdom and logic, either, but before we get to that, let’s examine the routine of judges once they take the bench.
The Holy Trinities
In keeping with national preference for triplets, American courts generally sit in an ascending hierarchy of trial court, appeals court, and supreme court.* In trial courts (called “district courts” in the federal system and usually termed “superior courts” in the states), a single judge presides over randomly assigned cases. American trial courts usually hold “general jurisdiction,” which means they can hear cases about anything, though some matters, either niche or low-stakes, are diverted to specialist courts (e.g., family, tax, small-claims, and traffic courts). Some courts divide themselves into civil and criminal divisions, but the judges themselves are usually generalists, as the common practice is for judges to rotate through the divisions, spending six months hearing criminal matters, then six months hearing civil matters, and so on. Federal courts are essentially generalist, with a few exceptions, notably the bankruptcy courts. Thus, in many courts, a judge might start his day with murder proceedings and end it with an intellectual property dispute. This arrangement is uncommon outside Anglophone countries. Foreign law favors specialization and courts reflect this; Germany, for instance, has five high courts presiding over different areas of law.34
Americans are so accustomed to their system that its fundamental oddness can be hard to appreciate, especially the American system’s faith in the single, omni-competent and all-powerful judge. In many countries, trials are not only separated by field, but overseen by more than one judge, to help correct mistakes as they occur; appeals also work their way up specialized channels. Specialization and contemporaneous review exist for a reason, and are central features of medicine, engineering, accounting, construction—really, everywhere save American judging. Business would consider American court practices lunacy; no CEO would dare launch a new soda without soliciting input from six dozen specialists from the legal, marketing, R&D, finance, distribution, and sales departments. No wonder judicial mythology emphasizes superhuman abilities: the infinite variety of human dysfunction is a lot for one mortal to properly judge.
Should trial courts somehow err (or seem to), litigants may proceed to the courts of appeal, whose authority binds inferior courts within an appellate circuit. Federal appeals are heard by three-judge panels, randomly assigned, and their decisions can be appealed to the entire circuit (a rehearing en banc). Circuits have jurisdiction over the same types of cases, but each rules over its own geography, and the fiefs often disagree. Therefore, federal law, which is supposed to be nationally uniform, actually varies from place to place. A securities claim brought in Jersey City will be governed by the interpretations of the Third Circuit, while six miles away, Manhattan proceeds under the precedent of the Second Circuit, which might be quite different. The same holds for some state appellate circuits, whose rulings bind only certain divisions (and then only some of the time; in states like California, things are even stranger and more complicated). This is a recipe for confusion, and circuit disagreements—along with matters of general importance—can be appealed to the relevant supreme court for harmonization, or finality, at any rate.
Aside from specialty matters such as state death penalty cases, a supreme court hearing is not guaranteed. After the 1890s, many supreme courts gained greater control over their dockets, able to decline appeals unless enough justices vote to grant leave.35 At the U.S. Supreme Court, the process is called certiorari (“cert”) and requires four votes. This step has become an intensely strategic game to vacuum up cases that will shape the law in high-stakes matters, while also allowing ideological blocs to dodge cases where they might not be able to achieve their desired result.36 (Cert decisions are heavily influenced by clerks, who do the initial review—more on this in a bit.) Cert also greatly reduces total workload, which benefits the Justices, though not necessarily justice: at the Supreme Court, cert has lightened the load much too greatly, with the Court now doing full dress on just eighty cases a year, substantially fewer than it once did.37 That pace is too slow to unify federal law or resolve other urgent matters, but it does leave time for more exciting work, like presiding over mock-divorce proceedings inspired by Much Ado About Nothing, a 2012 event requiring no fewer than three Supreme Court Justices and four appellate judges, one of the latter being Merrick Garland, who had his own brush with much ado about nothing four years later.* 38
Though cert allows the Court to take a stately two to three full cases per week worked (justice takes a summer break), other courts must take cases as they come, which can overwhelm. State courts are by far the busiest, handling an influx of more than 86 million cases each year. Up to two-thirds of those are minor matters—traffic violations, small-claims, and petty crimes—and though logistically taxing, such cases are dispatched easily enough. Nevertheless, 15 to 30 million larger cases remain, including at least 3.8 million serious criminal cases, against 11,000 general jurisdiction judges.39 That’s an immense volume, even deducting for the large number of cases that are straightforward or resolved out-of-court. Federal trial courts also face heavy loads: more than 440,000 pending cases against ~665 full judges.* 40 Some 11 to 15 percent of district court cases are appealed to federal intermediate courts and their 167 judges, and ~13 percent of these are appealed to the Supreme Court—which has other things to do, and other people to do them.41 But all judges have a lot to do—more, in their minds, than they can handle alone.
Santa’s Little Helpers
Judges—especially on elite courts—cope with their dockets by outsourcing labor to clerks and other staff. This strategy receives little media attention, and judges strive to keep it that way, both for reasons of routine confidentiality and because their sometimes extreme reliance on clerks would undermine judicial mystique and public confidence. But clerks are an essential part of judicial work, especially (and perhaps perversely) at the highest courts, where matters are most consequential and workloads lightest. Clerks conduct research, prepare judges’ questions for oral argument, draft many judicial opinions either in part or full, and at the highest courts, shape the docket by reviewing cert petitions. Thus, depending on the court and its master, much of what the public thinks is the substance of judging is done by people who are not judges—people who are, in fact, barely lawyers.
“Barely lawyers,” that is, because most clerks are recent law school graduates with little experience, so fresh from school that they have either not taken the bar or not yet received their results, and thus cannot claim the title “attorney.” Without a law license, a clerk could not represent a client in so much as a suit about a defective waffle iron. Yet, working in chambers and supervised (however nominally) by a judge, clerks can deny a prisoner’s civil rights claim or draft a death penalty opinion. That notwithstanding, most clerks are bright and diligent, because competition for clerkships is intense. But today, so is competition for clerks. For more than thirty years, judges have stampeded, snapping up promising students sooner and faster. In the early 2000s, the clerk frenzy prompted judicial organizations to impose the “Plan,” which laid out a calmer, more thoughtful hiring process. The Plan (which has gone through several iterations) has been about as successful as UN sanctions on North Korea. Aggressive judges routinely go rogue, grabbing choice students well ahead of the Plan’s official timeline, with some judges and professors conspiring to place students before the first year of law school ends.42 This harried process is necessarily a lightly informed chain of many links, each of them weak. Recruiting so early in law school means judges can only be guided by school reputation, a limited set of grades, and a smattering of professorial endorsements (themselves lightly informed), capped by a brief interview that often ends in an offer that many judges expect students to accept immediately. Thus, a profession that prides itself on deliberation shops for clerks like Ab Fab’s Patsy and Edina bought hats—fast, furiously, and with a hope that a prestige label guarantees quality and fit.
In this chaotic and otherwise unreflective process, one fact rarely goes unnoticed: a clerk’s partisan inclination. Students send political signals by including extracurriculars (Fed Soc, a gay rights group, etc.) on their résumés, catering to whatever politics they believe their prospective employers hold. And everyone knows which professorial recommendations cut ice with conservative versus liberal judges, just as everyone knows which judges are conservative and liberal “feeders” to the higher animals in the legal food chain. Doubtless, some judges pay no attention to a clerk’s politics, though the generally widespread congruence between judicial and clerkish ideologies reinforces what everyone believes but labors to prove by other means: whether labeled as judicial philosophy, worldview, or what have you, politics are part of judging.*
A major reason for the clerk hiring frenzy is that judges perceive clerks to be indispensable, though this is as much a product of cultural shift as higher workload. Until the early twentieth century, clerks were uncommon; the Supreme Court, for example, employed none until 1885 or so. Today, the Justices have four clerks each (and the Chief is permitted five). Federal appellate judges also usually take four clerks, and district judges hire two or three. Most judges supplement clerks with interns/externs (who spend a semester processing simpler work) plus the customary secretaries and helpmeets.
In addition to the clerks, courts employ staff attorneys, who serve a courthouse generally (rather than specific judges). These staffers process higher volume matters, mostly indigent lawsuits/pro se/prisoner rights cases/benefits disputes and other items too small to detect from the legal Olympus. Having categorized these matters as “lesser,” many judges briskly approve whatever outcome staff attorneys recommend (not always competently), freeing judicial time for more intellectually fascinating tasks.43 The exceptions to staff-driven justice reside in lowlier state courts which, despite much heavier workloads, have neither the cachet nor resources to hire (m)any clerks. But those who can hire clerks do; no ambitious judge wants to go without.
Like all entourages, clerkly harems foster unhealthy dependence. Society grants courts considerable power because it expects that power to be exercised by officials of remarkable wisdom, experience, and probity—i.e., it’s bought the judicial myth. But that myth, if it applies, applies to judges, not clerks. Clerks are overwhelmingly in their mid- or late 20s, with virtually no life or professional experience; they aren’t sages on the mountaintop. Rather, clerks’ outstanding virtue is excellence in the standard (though deficient) legal curriculum, and if all they were doing was preparatory research, society would have no objection. But clerks do a lot more than research, and the damage is most obvious when clerks write opinions. Lacking other tools, clerks tackle cases like glorified term papers: the grader’s preconceptions must be flattered, the research must be exhaustive, the logic dense, every objection countered, and the actual outcome… well, that’s often of decidedly lesser importance. The result is as formalistic and overengineered as you’d expect, and it’s often difficult to tell (or care) what a clerk-written opinion means. The results can also be extremely unimaginative, since few points will be deducted for slavishly following precedent. A confident judge, by contrast, will produce an opinion that focuses on the core issues, dispatch those cleanly by employing only the essential arguments and, having a respect for her own time that clerks invariably lack, keep things short. That’s a better result all around; the law is made more clearly, comprehensibly, and flexibly, with an emphasis on justice.
Just as clerks can degrade judicial opinions, they can deform judicial psyches. Many judges treat their staffs like serfs. Judges force clerks to work exceedingly long hours, swear them to secrecy about even nonconfidential matters, and some require clerks to toil on extracurriculars like speechwriting, drudgery for pet causes, and personal errands. Judges also insist on a culture of bow-and-scrape that vanished from other workplaces long ago; many judges insist on being called “Judge” in all circumstances and insist on pomp and servility. This is outright regressive: in the eighteenth century, American judges eschewed English wigs (too royalist); in the nineteenth, many forwent robes (same); but in the twentieth (when clerks arrived), every judge was in a robe.44 Chief Justice Rehnquist went so far as to slap gold stripes on his togs, because he saw a production of Iolanthe in which the Lord Chancellor had gold-striped robes and presumably thought: I’m the boss, so why not?45 To be sure, clerks have not deformed all judicial egos, and some judges are extraordinary mentors. But some judges are nightmarishly abusive, in ways that violate the law (Kozinski’s sexual harassment, for example) and basic decency (screaming and other emotional terrorism are not uncommon).46 It’s difficult to see how this much imperium doesn’t pollute other judicial work. Condescending and lawless chambers promote condescending and lawless judging.
Bartleby, the Judge
Now that the cast is assembled, the question becomes: How do judges decide? Measured as a fraction of cases filed, trial judges rarely “decide” much, in the sense of resolving cases by determining responsibility and levying penalties. Unless parties have agreed to a bench trial, it’s jurors who decide guilt and innocence, and in civil trials, jurors also shape the damage award, while in criminal matters, legislatures require judges to follow an unappetizing and robotic recipe book. Anyway, trials themselves are exceedingly rare; by the 2000s, they were fewer in absolute number than in the 1960s (despite a rise in filings), and today, up to 97 percent of civil matters never reach trial, including an increasing fraction diverted to arbitration.47 The umpires of John Roberts’s fantasy league see most of their games rained out in early innings.
Unlike real umpires, though, trial judges have some control over the weather. They, and the rules they’ve written, can and do encourage, and sometimes outright coerce, settlement—judgments by other means. Especially in civil matters, it’s not uncommon for judges to muse in pointed fashion about how parties really ought to work things out among themselves, sparing an overtaxed court system the bother of another case.
Were it true that out-of-court settlements represented deals struck by free and knowledgeable parties, we might celebrate the “nudge from the judge” as a triumph of economy. But, as we’ll see in later chapters, plea bargains, arbitration awards, questionable mediations, and so on are the frequent and unjust results—precisely the sorts of arrangements that should provoke unease in a judge and prompt her to invoke the many and venerable equitable doctrines that would retrieve powerless parties from the grip of a parallel justice system biased against them, or to simply retain control of the case from the beginning. At least these sins are mostly of omission; it’s hardly unknown for judges to shove litigants out of court by making perfectly clear when they believe a party is being “unreasonable” in demanding a day in court, a practice that is prejudicial in various senses of the term.
Even when judges don’t actively shut the courthouse door, they unintentionally shape legal outcomes through lackadaisical case management. The meter is always running in litigation and judicial delays can compel parties to settle cases that both sides would otherwise wish to see through. This happens more frequently than it should, though it rarely makes headlines or attracts the attention of the Supreme Court. In business, every minute shaved off an Amazon Prime delivery represents a victory in the existential war against chaos and inefficiency. But judges operate at great remove from MBA culture; they manage their calendars as they like, and frequently what they like is delay that postpones work and induces parties to settle. Little about judicial culture penalizes pokiness, and modern management principles seem anathema.
Consider, for example, the rules for federal judicial administration. Within a federal district, administrative duties fall to the chief judge, who is selected not for managerial aptitude or interest, but on the basis of being the most senior active judge under 65 when a chiefship opens. To borrow from Tom Paine, this system is as likely to produce good judicial managers as heredity is to produce a good mathematician or CEO. Nevertheless, the system proceeds mostly unreformed, save for a few tentative experiments, like circulating statistics to shame judges into clearing their dockets. But shame is not a concept with much currency among gods, and to the extent it has an effect, it can make things worse: there’s some evidence that judges will find ways to “tidy up” their statistics by resolving slews of cases before target dates, a practice with all the dangers that attend arbitrary deadlines.
Inattention to case management makes litigation slower and worse than it should be. Things move along faster than in Bleak House, but not nearly fast enough; in district courts, median time from filing to disposition is 7.6 months for felonies and 10.4 months for civil cases.48 But this disguises some unsettling variability. In one study, 40 percent of civil cases were resolved within six months and two-thirds within a year.49 These encouraging statistics are offset by the fact that many cases are patently frivolous, and gimmes don’t count for much. The remaining one-third of cases took more than a year to resolve, many requiring several years, and some taking more than a decade. By far the longest delays attach to jury trials. In civil cases, median time from litigation’s commencement to a trial runs to 26.4 months, and fully 15.7 percent of cases (representing 56,548 cases as of December 2016) were more than three years old and getting older.50 While it’s true that some matters just take longer to resolve—securities cases, for example, are extremely complex, with every step contested—mismanagement is responsible for much of the delay. In a subsample of employment cases, roughly half were resolved within three months, while the rest took two to three years; that’s an enormous difference for cases in the same field, even if the facts vary.51 Some blame rests with the litigants, who can be dilatory and chaotic, but that’s no excuse. Judges have an obligation to ensure the swift administration of justice, and they have tools at their disposal to herd the various legal animals set before them. However, in one study, less than half of federal civil cases showed the entry of a scheduling order/conference, basic mechanisms for litigation management.52
When the ringmaster fails to wield the whip, the results can appall. An extreme example involved straightforward federal drug charges in New York, in which the defendant was held for almost seven years during “pretrial proceedings.” The Second Circuit made clear that the delay was a product of astonishing mismanagement and poor judgment, including, but (as lawyers say) not limited to: several months wasted on three mental competency hearings (the lower court believing that the defendant’s desire for a speedy trial indicated some form of insanity); a 117-day interlude for stenographers to transcribe a one-day hearing; further postponement due to the court’s and prosecutor’s “congested calendars”; an inexplicable period during which the U.S. Marshals “lost track [sic]” of the defendant; and so on—all delays which the lower court had the power and obligation to correct.53 Somehow, this did not grind the defendant down into accepting a plea (itself delayed by a year). But not all litigants have such fortitude; many give up entirely, while others settle on less-than-ideal terms.
Assuming the litigants survive the delays (some literally die during the wait), judges become more active, ruling on pretrial maneuvers that can dispose of cases (“dispositive motions,” in law’s pedestrian poetry). Again, though, measured as a fraction of cases, these events are rare because the system disfavors them. In federal civil suits, plaintiffs need only set out a complaint that offers a “short and plain” statement of their case, which competent lawyers can usually manage.54 From there, defendants can ask the court to dismiss the suit based on some fatal flaw—a prime example being that the plaintiff failed to state a valid claim for relief.* 55 However, even if a case seems weak, there’s frequently no point in attempting a motion to dismiss, as the law essentially forbids skepticism by assuming (at this stage) that facts alleged by the plaintiff are true. Defendants bow to the system’s preferences and in one sample, only one-sixteenth of cases saw a motion to dismiss for failure to state a claim, though when brought—usually because a case was obviously dead on arrival—around three-fourths of these motions were granted in whole or part.56 Nevertheless, plaintiffs normally get a chance to repair their claims, and many do, so few cases risk death at this stage. Arguably, more should; I once saw litigation based on the plaintiff’s contention that he had invented the toothbrush sometime around 1996 (the first toothbrush was invented in the Tang dynasty, circa the eighth century AD), which took longer to resolve than common sense might suggest. To help trim the lunatic fringe, the Supreme Court tightened pleading standards in 2007–2009, forbidding conclusory and implausible allegations, but the effects were fairly modest in absolute terms.
As the case unfolds, the parties exchange information, a process called discovery. Litigants bicker every step of the way, because discovery is invasive, expensive, disruptive, and frequently inconclusive—colonoscopy by paperwork. The general posture of judges toward discovery disputes is that of the weary parent chaperoning siblings who should be old enough to figure out how to share. What judges often fail to appreciate at an intuitive level is that discovery rulings can adjust economic contours so radically as to force one or another side into settlement. The dramatic inflation in legal fees renders the costs of litigation viscerally incomprehensible to judges who left private practice even a decade ago; costs aside, most judges and litigators, having never been in-house counsels, also have no idea of the organizational disruption these fishing expeditions create. Discovery disputes deserve the same probity and effort given to dispositive motions (which get more attention, because they are “sexy”). Yet, many judges consider discovery matters tawdry and insignificant, offloading them to clerks, magistrates, special masters, fate—anywhere, really, besides their own persons. When courts do resolve discovery disputes, orders can be so cursory and formulaic (often relayed during a conference call) that it’s reasonable to question if thought was involved at all.
If the parties soldier through discovery, they may ask the judge to resolve the case through a motion for summary judgment. The original purpose of summary judgment was to speed up litigation (judgment was supposed to be summary). The experiment didn’t work; use was less frequent than it could have been, because the standards evolved to heavily favor allowing cases to proceed, except when the claims were palpably unsupported. Anyway, of the roughly one-fifth of cases in which the procedure is invoked, many summary judgment motions are brought with the purposes of slowing down litigation, so that disputatious parties can test their opponents’ cases on paper before proceeding to trial.57 Some claims do expire in summary judgment, but if enough economically viable claims survive (as they often do), the judge will set a trial date for some point in the hazy future. If litigants eventually try the case, things unfold as on TV, albeit with less drama and many more mistakes. The jury reaches its results, which the loser may ask the judge to set aside, though success here is rare. (It does happen in special circumstances: until 2017, Alabama judges were permitted to impose death sentences over jury objections, and did so surprisingly often.58) From there, parties either accept the result or file an appeal.
The classic image of the trial judge is of the great arbiter, carefully deciding cases after secluded contemplation. The reality is more prosaic and ad hoc. In the few instances in which judges can formally decide a case, the law strongly counsels against doing so and reserves the right to review any decisions that buck the trend. By contrast, trial judges pay far less attention in the areas where they have near-plenary powers to shape litigation. Discretion in managing dockets, deciding discovery motions, and resolving evidentiary questions at trial is almost unlimited, and appeals courts show little interest in questioning trial courts’ decisions. From a systemic view, these matters are deemed second-class, and command no interest, produce no fame, and provoke no lapidary opinions—and in many cases, no opinion at all. It’s perverse that the areas in which trial judges have the greatest discretion to do good command the least attention. Then again, trial judges don’t command much attention. Just look at the credits on legal dramas: judges are always listed as “extras.”
Trial judges are like Greek household gods, critical to the household but of little importance outside it. Appellate judges are something else: law’s Olympians, able to influence populations far larger than two squabbling litigants in a local courthouse. These are the judges on whom senators, public interest groups, law professors, and reporters lavish their attention. The essential questions about appellate judges are not whether or what they decide—eventually, every flavor of issue will reach some appellate court—the questions are how they decide and why.
From a mechanical perspective, appellate judges customarily decide by signed, written opinion—one of the great norms of modern legal systems. Written, published opinions promote accountability and force their authors to justify decisions by name, which tends to improve quality of thought.* What these opinions do not fully illuminate is why the judge reached that decision. Again, in a system that presumes lawyers can justify any position, opinions only assure us that reasons exist for a given conclusion, without necessarily proving that those reasons were the best available, or even genuinely held. But the opinions are reasonable evidence and, combined with what we know of judges and clerks, corroborate the two major models for judicial decision-making: the formalist and the realist, or in lay terms, the traditionalist and the freewheeler.59
The traditionalist, represented by Roberts’s robot-umpire, emphasizes precedent and pattern matching. If a tennis ball lands smack on the line: Is it good or is it out? The traditionalist scours the archives to see if some higher and prior authority has decided the issue; if the Supreme Court has ruled that a ball falling on the line is out, case closed. Only when the case presents true novelties does the traditionalist begin to think for himself. This second, and more laborious, step is frequently unnecessary. First, most cases are not novel—humanity is repetitive in its errors and disputes. Second, traditionalists are Ecclesiastical by nature, and rarely see anything truly new under the sun, only variations on fundamental patterns. So even if the case law on foul balls deals exclusively with baseball games, traditionalists may disregard the distinction as insufficiently significant. They see two balls, two lines, and one analogy. Only in the most unusual circumstances does the traditionalist take out a fresh sheet of paper—or to put it more accurately, does he admit to doing so.
By contrast, the freewheeler starts with the facts, forming an impression of what a just result might be. The ball lands on the line, but perhaps tennis is too different from baseball, or perhaps the line has been drawn crookedly, or new regulations have made the line much narrower than it was, or the penalty for a bad ball has risen from a yellow flag to death by guillotine: Given these facts, what would be the just call? Context supplies the answer. Unless there’s controlling opinion clearly foreclosing that answer, the fair result will be backward-justified, since all judges acknowledge that precedent has at least some value (even if only as window dressing). In external form, the result may appear to be purely traditionalist, adorned with citations and deference to precedent, even though the outcome was achieved before precedent was fully consulted. It’s not hard to cobble together plausible opinions this way, because modern databases can obligingly produce cases standing for almost any proposition. Nor, if the judge is wise, should this judicial model be particularly alarming, since the whole point of judging is to achieve a just result. From here, I’ll call this the “Posnerian” model, after the former Seventh Circuit judge Richard Posner, who described variants of this process as his modus operandi in some cases.60
Both models credibly describe how judges decide. Indeed, both models may be simultaneously credible. To take an absurd example (a favorite tactic in judicial opinions), let’s say the Supreme Court has dealt with a dozen cases on tennis matches, issuing some blood-and-thunder opinions about how Americans have a Constitutional right to speedy tennis, and thus all questionable balls will be deemed immediately out of bounds without further investigation, penalty set at $5. The traditionalist, confronted with a ball that lands partly on the line, will duly assess the $5 penalty. The Posnerian will do the same, because even if the line has been crudely drawn or the relevant law treats a different sport, various jurisprudential values—legal clarity, consistency, and so on—vastly outweigh whatever injustice attaches to a $5 penalty. These sorts of easyish cases make up a lot of legal work, but if they were all that judges dealt with, there would be no books about judicial philosophy.
Closer cases are more interesting. They’re also more important, precisely because precedent provides no obvious outcome (or in cases like Brown, because the mechanical outcome—segregation now, segregation forever—would be crazy to follow). But it’s likely that the traditionalist and the Posnerian resolve many hard cases the same way, given the influence of clerks and politics. Consider the traditionalist judge, bound by precedent but reliant on clerks to rummage up the salient case law. The traditionalist’s clerks, knowing their boss’s predilections and being eager to please, may treat their judge as a special kind of client, sifting the archives (consciously or unconsciously) in ways designed to flatter their judge’s perceived ideology. In such cases, clerks’ bench memos and draft opinions may seem to be necessary results of precedent, without actually being so. Unless a judge knows the relevant area well (less likely in novel circumstances) or undertakes exhaustive personal research (less likely still), the judge might never detect his clerk’s motivated reasoning; the traditionalist’s result may be Posnerian by different procedure. The key difference between the ostensible traditionalists and Posnerians is that the latter realize what they’re doing and it’s their judicial wisdom—not some clerk’s mental map of his boss’s political philosophy—that decides the case.* The Posnerian model gives traditionalists the hives, but to repeat what should be obvious to the robot-umpires, isn’t judiciousness why we have judges?
Whatever methods different judges use (and even a single judge may use different methods in different cases), appellate judges always have their logic tested. Unlike trial judges, appellate courts work as panels, affording colleagues a chance to push back. A clerk’s desire to please is greatly outweighed by a desire not to embarrass. Clerks may work unduly hard to undermine disfavored precedents or overstate their bosses’ preferred positions, but they will not omit important precedents and contrary arguments for fear of being caught out. Intra-panel competition improves judicial rigor, but the existence of panels hardly guarantees perfect and ideology-free results. In a simplified world of two homogenous political parties, one party always dominates every three-judge panel—and the greater the domination, the more one might expect partisanship. There are suggestions this occurs.
Whatever the method, are the results any good? The fact that decisions can be appealed and reversed provides a tempting means to evaluate. But great care should be taken, as most cases involve too many factors to succumb to simpler statistical analyses. A reversal here and an affirmation there may not be comparable. Even the most basic statistics can mislead: in treating the Supreme Court as the final word in correctness, a casual examination might suggest that federal appellate judges are nincompoops. When President Trump and his proxies condemned the Ninth Circuit for questioning his travel ban, they made this and other errors. Trump attacked the Ninth as being “overturned at a record number,” while Sean Hannity called it the “most overturned” court in the country.61 (The “record,” not that it means much, is a 100 percent reversal/vacation rate for cases taken, achieved by various circuits at various times.62) These sorts of attacks conflate reversal rates with total “error” rate, and use a small, biased sample: the Court takes few cases (well fewer than 2 percent of those on offer) and overturns a lot of what it does take.63 Thus, between 1999 and 2008, for example, even the “best” circuit (the Seventh Circuit) was countermanded 55.3 percent of the time, while the “worst” (the Federal Circuit, which focuses on specialist matters like patents and suits against the government) was set back 83 percent of the time.64 High reversal rates are normal: the Court, which controls its docket, often takes cases it wants to reverse. Unlike lower courts, the Court doesn’t have to waste time on “jobs well done.” These numbers aren’t terribly meaningful, whatever Trump says.
Looking at circuit courts, which must review all issues ready for appeal, reversals of district courts run under 10 percent.65 That seems encouragingly low, reflecting few mistakes, though arguably the rate is too low. Again, context matters. Except for pure questions of law, which are reviewed from scratch, appeals courts strive not to second-guess trial courts (though second-guessing would seem, to the layperson, to be the function of appellate courts). This reluctance manifests in forgiving standards of review, e.g., reversing when a trial court “abused its discretion.” Applying this standard in a meaningful way requires practical knowledge of what factors really matter in trial litigation, information that many appellate judges do not possess, having never been trial judges or litigants. For example, most litigants would see chaotic and dilatory case management as “abuses of discretion,” but appellate courts generally do not. Instead, they hold that the trial judge’s discretion to manage his courtroom being “broad,” mismanagement should be overlooked save when it has been so gross as to void a core right (there being, by implication, no freestanding right to efficient litigation).66 Appellate courts, focused on grander legal questions, apply the forgiving “abuse of discretion” standard to trial judges’ conduct that can prejudice a case more deeply and permanently than many purely legal errors: not only case management, but many evidentiary rulings, the scope of cross-examination, admission of expert testimony, breadth of discovery, and even judicial recusal in some circumstances.67
Appellate courts can bend in other ways to accommodate lower courts. If a trial court disqualifies a party’s lawyer—hardly a minor matter—that order will stand if it has “any sound” basis. Even if a court abused its discretion in the colloquial sense (say, by changing a verdict form after submitting the original to the jury), appellate courts will stand aside if the error is “harmless.” Sometimes deference will be granted, even when the consequences can be significant, as when courts opine on the reliability of a witness before jurors—conduct that will not be questioned absent “clear error.”68 Leaving aside some legal niceties, the net result is that, in many contexts, appellate courts only intervene when the judge has essentially gone bananas, and even then, some trespasses may be forgiven so long as they are “non-prejudicial” or have any “plausible” basis (even if not well articulated by the trial court itself). The official theory is that the trial judge, immersed in the proceedings, should be free of Monday morning quarterbacking. The central exceptions to these rules involve purely legal questions, though most appeals on these grounds must wait until the complete resolution of the trial case, or when a failure to intervene obviously risks destroying a litigant’s legal ability to continue. The standard justification for this posture of delayed intervention is that constant appellate course-corrections would bog down trial courts and encourage wasteful appeals. Assuming this is true, and that a quick course-correction before lengthy proceedings would not expedite matters, the appellate justification still remains questionable. After all, it’s more an argument about achieving judicial efficiency rather than justice or truth (inverting judicial rhetoric and practice) and may even undermine just results, since trudging through the full hoopla of trial may exhaust litigants’ resources and preclude appeals, even appeals that might be winners.
Human Error
Mistakes happen; the existence of appellate courts concedes as much. Judges, though they labor to seem otherwise, are only people. They are prey to the same cognitive biases as other people—e.g., confirmation bias (seeing what they want to see), anchoring bias (overreliance on certain bits of information), the blind spot bias (a bias that keeps people from seeing bias), and, especially, overconfidence bias (having bought into their own Solomonic mythology).69 Judges even get “hangry,” or at least tired: a small study of Israeli judges showed that they granted 65 percent of parole requests at the start of a session, dropping to almost zero by the end of the sitting, but after a snack break, judges returned to almost the same levels of leniency that prevailed in the clement afterglow of breakfast.70 Judging requires sustained attention to detail, often furnished by people who are boring (the lawyers), aggravating (both lawyers and litigants), or just plain crazy. With sittings dragging on for hours, the carnival can be more tedious than mortals can bear. Until the robots take over, courts should make the same concessions to biology that industrial organizations do. Bathroom and snack breaks would be quick and near-costless means to improve justice.
Other reforms may be impracticable, and of these, the greatest challenge is to recompose an unhelpfully homogeneous judiciary. On conventional metrics, the judiciary appears to have made progress, with race and gender becoming somewhat more balanced. Until the 1970s, the federal bench was near universally white, male, and Protestant; today, it’s about a quarter non-white, a third female, and religiously mixed (including many nonreligious judges, though seemingly none on the Supreme Court).71 Overall, judges of different ethnic and gender backgrounds reach generally similar results (as one would hope), so a more diverse bench may not change many legal outcomes. However, black judges seem to be more amenable to certain voting rights and affirmative action claims, and black judges appear—make of this what you will—somewhat more likely to be reversed (though race alone may not be the variable doing the most work here; partisan affiliation seems important).72 Even so, what exceptions exist are no more than modest. Regardless, greater diversity would improve perceptions of judicial legitimacy. As courts better resemble the communities they judge, people might become more likely to obey—reason enough to celebrate diversity.
“Conventional diversity” is not, however, the greatest compositional problem facing the judiciary—age and vocational uniformity are. Judges are increasingly old, and this is now a serious problem. While much was made of the shift since the Reagan Administration of appointing younger judges to ensure long legacies, the aggregate impact has been mixed. Federal judges remain late-middle-aged when appointed, on average fifty, though once emplaced, they prefer to stay forever: the mean age of sitting federal judges has been increasing faster than life expectancy and half of active circuit judges are over sixty-five (and sixty-one for district court judges) and for all judges, the average is approaching seventy.73 Part of this is attributable to “senior status,” which allows older judges to remain on the bench, but with reduced caseloads. But a reduced caseload is still a caseload, and senior trial judges collectively manage almost a fifth of all cases.74 By definition, these judges are at an age where fatigue and cognitive decline become real considerations. At least senior status partly acknowledges this, though no judge is compelled to take it, and many “active status” judges linger on well past normal retirement age.
Judicial aging will almost certainly get much worse, as the preferred method of leaving the bench is in a casket. Depending on the year, 55 to 80 percent of judges who leave the bench do so by dying, and this reluctance to officially retire, combined with longer life expectancies, will move the federal bench from old to ancient.75 By 2010, several judges were well into their 90s (thus, born while the Model T was still in production), and Judge Wesley Brown was still serving—at 104—before he died in 2012.76 Some elderly judges remain quite good; indeed, the two sharpest judges in the courthouse I briefly worked in were quite old (though given to prolonged, silent immobility, which caused bemusement and unease in our craven, 20-something eyes, worried that these judges had expired mid-hearing). But there’s no regime to ensure this.*
Intellectual and vocational diversity are also in sharp decline. A key advantage of an appointed (rather than career) judiciary should be diversity of background, especially in a system in which courts have general jurisdiction and hear all manner of cases. Until the late 1970s, judges had comparatively varied backgrounds. Today, most federal trial judges are appointed directly out of public sector legal jobs. About 15 percent were public lawyers (frequently prosecutors), but the greatest shift is that almost half of federal trial judges are appointed directly from another judgeship (a lesser federal judgeship, like a magistracy, or from state courts).77 Likewise, half of federal appellate judges had been judges before.78 The trend is toward a de facto career judiciary, albeit one that lacks the advantages of formal training and apolitical advancement that characterize foreign career judiciaries. It’s not the worst of all worlds, but it’s not the best.
Career trial judges have most notably displaced candidates from private law, who were mainstays of the mid-twentieth-century nominee pool.79 While most of today’s trial judges worked for a law firm at some point, their tenures tend to have been shorter and their experiences further distant, than those of private lawyers appointed sixty years ago. As a result, modern judges have less intuition for the dynamics of private practice. What private lawyers are appointed today are usually ex-litigators, not the corporate and regulatory attorneys who supervise the work underlying much of modern litigation—and we saw the consequences of judicial misapprehensions about bureaucracies in the last chapter. Judges with business or STEM backgrounds are also rare, though many civil cases are about nothing but business, and most IP and criminal cases turn on technical evidence.* The risks of misunderstanding can be great. So can the level of sheer disinterest: the broader financial sector accounts for about 10 percent of GDP, yet the Court takes relatively few banking, insurance, or securities cases, and the quality of its efforts in these arenas is, to put it politely, mixed.80
The decline in curricular diversity is most noticeable and consequential at the Court, which once attracted an astounding variety of talents. Save Kagan, today’s Justices were all appointed directly from the judiciary, and while they are near uniformly intelligent and capable, their prior careers were overwhelmingly judicial/academic.81 It would be helpful to add other talents to the mix. Much of the Court’s work depends on parsing statutes and assessing legislative mechanics, but ex-legislators are rare on any courts, and the Supreme Court has not included a former legislator since O’Connor retired in 2006. The Court also routinely evaluates the workings of the executives and federal agencies (and tacitly considers merits of litigated policies), so Justices with pertinent experience would help. But the Supreme Court has not included any truly major public executive in many years, though many significant politicians once made historic Justices: Earl Warren (thrice governor of California); Charles Evans Hughes (governor of New York, U.S. secretary of state); Robert H. Jackson (attorney general); Harlan Fiske Stone (same); Arthur Goldberg (secretary of labor); William Taft (president); John Marshall (secretary of state); etc.82 Although no one sensible wants a politicized Supreme Court, we have one all the same, so it might as well include some seasoned politicians with firsthand knowledge about the other branches.
Vocational concentration across all courts produces gaps in institutional knowledge, against which the legal system provides no real safeguards. Clerks rarely have practical experience in fields other than law, and can’t do much to correct judicial misapprehensions about, say, commodity derivatives or semiconductor lithography. Litigators also have almost exclusively legal backgrounds, and might not notice judicial mistakes about accounting standards, DNA evidence, or legislative intent. And all lawyers may experience a certain déformation professionnelle, as the French call it—a tendency to view things solely through the eyes of their own profession. Corporate lawyers, for instance, often neglect the economic substance of a contract; judges do the same. There are exceptions, of course, like Delaware’s corporate-oriented Court of Chancery. Even if Delaware hiked taxes, corporations would still be happy to make their home in Wilmington if for no other reason than that—unlike almost every other state—Delaware has laws that reflect corporate realities and judges who are expert in business matters. There’s a demand for diverse, substantive background; it just goes mostly unsatisfied.
The bench also further homogenizes judges by abstracting them from the world evolving outside chambers. England furnishes one of the more amusing collisions of age, privilege, and insularity. In Sutton v. Hutchinson, a case alleging underpayment for services, Ms. Hutchinson, lately of the Spearmint Rhino, appealed to the Royal Courts of Justice, where Lord Justice Ward ventured: “The appellant is a lap dancer. I would not, of course, begin to know exactly what that involves. One can guess at it, but could not faithfully describe it.”83 Fortunately, the trial judge had helpfully recorded that “the purpose” of a lap dancer “is to tease but not to satisfy.”84 One need not patronize the Rhino (or entirely buy Lord Ward’s schtick) to realize that judges are perhaps a little distant from regular life, especially its baser aspects—though it is, of course, base impulses that land people in court. In any event, this is a trans-Atlantic phenomenon: during the Supreme Court’s mid-century obscenity cases, Justice Harlan, partially blind and insulated from normal life, was forced to have Justice Stewart (or their clerks, depending on the teller) narrate the proceedings in porno flicks.85 (“By George, extraordinary!” appears to have been Harlan’s repeated refrain.)
All very droll, but these anecdotes reflect a serious discontinuity from real life and the community mores that judges police. A Court that still communicates by hand-delivered paper memo can have limited feel for how the unrobed masses use email, what expectations of privacy they have, and what search or discovery standards ought to be.86 The blunders are especially evident in oral argument. Cell phones, for example, appear to perplex some Justices. Though cell phones have been in wide use for a quarter-century, they seem as mysterious to judges as jet planes would have been to John Marshall. During oral arguments, Justices have asked fairly basic questions about cell phones.87 The social aspects of these devices apparently confounded Roberts and Scalia, both of whom wondered why anyone might have multiple cell phones, intimating that an outlandish profusion of (two) devices could suggest criminal behavior.* 88 Here, all the interpretations are odd: (1) Roberts had forgotten that normal working humans often have two phones; (2)(a) Roberts has one government-issue cell, and uses it for work and personal calls; (2)(b) Roberts uses his personal, unsecured cell for work calls (risking government information); or (3) Roberts has no cell (and thus lives under a very lonely rock). To this we could add (4), that President Trump, who has multiple cell phones, is presumptively suspicious, though Trump is what older lawyers would call an “aggravated case.”
Comic or sinister, the larger point of this abstraction from technology-in-reality is that laws on searches, seizures, privacy, etc., frequently turn on communities’ “reasonable” expectations. Age and isolation leave judges less capable of making that assessment competently. As late as 2014, Scalia intimated he knew of no one with multiple cell phones and the transcript records “laughter,” when the correct response should have been “awkward silence” or “muted gasps.”89 (Also, his friend Justice Ginsburg has two, and probably has for a while, given that one of them is a BlackBerry.90) Younger lawyers have their favorites: Sotomayor’s “the iDrop” (a conflation of Dropbox and iCloud and adding the fogeyish definite article); Scalia’s worries about people ripping HBO off the airwaves (not realizing that HBO is not broadcast); Kennedy’s bucolic view of coding (musing that “any computer group of people” might churn out code); and Roberts’s bafflement at technological complexity (describing intellectual property as complex, because it involved “a lot of arrows”); and on and on.91
The Justices are the most abstracted from real life, but many appellate judges hardly do better. Trial judges, confronted with daily life, are reasonably tethered—but unlike appellate judges, trial judges rarely make the law, and I’ve certainly litigated before some whose technological grasp was grandparental, at best. The laws of privacy, police searches, big data, artificial intelligence, and especially free speech, are all affected by new technologies and social expectations—and judges may not have the experience to decide wisely.
A judge does not have to be an electrical engineer to appreciate the role of technology in society, but judges should lead lives in which technology plays something like its normal role. Cloistered judges may not understand, at an emotionally profound level, how important new technologies are, with harmful consequences to emerging technologies and the economic growth and communities they foster.* Half of the average user’s social media posts probably violate privacy, libel, emotional distress, and related laws as currently construed. What will judges do about that? Will they hold teenagers accountable for “publishing” deliberately unflattering comments about friends or make a codefendant of Facebook over noxious posts? How about Twitter: Is #fakenews libel per se?† What will judges make of Bitcoin—are crypto-users so alien that they must, like people with two cell phones, be potential accessories to money laundering and drug running? We’ll find out. The Old Ones will let us know.
The judicial office also promotes an unhealthy level of arrogance and secrecy.92 Justice requires humility, but the whole apparatus of servility fosters a sense of infallible righteousness. Justice also requires openness. It’s one thing to be discreet, which the judiciary is—commendably, of all government institutions from the CIA to the White House, the judiciary leaks least. But discretion does not require a code of absolute silence. Judicial culture is far too paranoid about its workings, with some judges embargoing lunch menus in the belief that the future of free speech could be divined from some judge’s choice of salad dressing. Worse, even lawful whistleblowing doesn’t happen, so that misconduct and intellectual decline go largely unreported. The long-overdue revelations about Alex Kozinski provided an especially depressing reminder.93 Kozinski may or may not be an outlier, but the culture of secrecy means we can never really know. Indeed, for our most important courts, we cannot easily see their ostensibly public workings, while the Court forbids cameras, even though C-SPAN has been televising Congress’s workings for forty years and the press corps has been stalking the West Wing for a century. The judiciary should be beyond political account, but it shouldn’t be invisible. Extreme secrecy only fuels the already powerful conspiracy theories about activist and unaccountable judges. After all, in the TV age, only two types of people have their likenesses publicized by chalk sketch: the FBI’s Most Wanted and the Justices.
State court judges have been a mixed bag from the start, and until judicial elections are reformed, or voters take a greater interest down-ballot, state benches will remain extremely uneven. Federal judges are different. For almost a century, they have been among the best members of the legal system. Nothing guarantees that they will remain so. The benefits of life tenure are being eroded by extreme longevity and associated decrepitude. Many countries avoid this problem by imposing fixed terms (judges of Germany’s highest courts serve twelve-year terms) and/or mandatory retirement ages. Even other Anglophone countries, enchanted by backwardness, find ways to ease out judges with comparative facility. And English-speaking or otherwise, most nations screen judges more rigorously from appointment onward.
The Constitution makes it hard for judges to change life tenure system-wide (though they could interpret the Constitution’s “good behavior” requirement to forbid drooling senility). Judges can, however, self-police and foster a culture in which retirement is the rule, not the exception. Judicial leaders should also address the growing divergence between judicial pay and private sector compensation, which in the next two decades will become unsustainably large, at least for lawyers in their prime. Presently, the gap is narrow enough for the considerable prestige of federal judgeship to bridge, but judicial prestige, as with the prestige of all government work, is in secular decline. Judges should ask for better pay and get it. They should also rely less on their clerks, impose a proper training regime, take court management seriously, and urge executives to make more intellectually diverse appointments.
The rule of law depends on a strong judiciary, which in turn depends on the respect of the governed. The magic works only so long as the flock is prepared to believe that the magicians are worthy of the gift. By failing to enact adequate institutional safeguards and conducting a torrid affair with an untenable mythology, the judiciary promotes weaknesses whose consequences travel beyond any single courtroom. The effects, however, have been rather grimly mitigated by the arrival of private adjudication—the Blackwater to the judiciary’s geriatric Green Berets.