Introduction
From time to time, Supreme Court watchers predict that we are on the verge of a constitutional revolution.
Many commentators today forecast a sea change in the Court’s jurisprudence on high-profile issues, such as abortion,
affirmative action,
gun rights,
and the administrative state.
Although some observers celebrate this prospect,
many others fear the anticipated revolution.
Accordingly, the Supreme Court is increasingly under fire. Critics have questioned the Court’s legitimacy
and called for structural reforms that would have been almost unthinkable a few years ago, including “packing” the Court with additional members.
Whatever one thinks of the merits of the anticipated legal changes (or structural reforms), it seems that all eyes are on the Supreme Court.
This Essay argues that the narrow emphasis on the Supreme Court overlooks the broader reality of the federal judiciary. The Court cannot achieve legal change unilaterally; it must act through the lower federal courts.
And with respect to high-profile issues, the Justices may face a twofold dilemma: unappealing tradeoffs between legitimacy and legal change, and between Supreme Court and lower court legitimacy.
Let us begin with the first tradeoff: To most effectively ensure legal change on high-profile and contested issues, the Court should clarify the law through broad, rule-like precedents. Although ideology plays a limited role in most lower court decisions, empirical research suggests that judges are more likely to vote in predictable “conservative” or “progressive” directions on issues such as abortion, affirmative action, or gun rights.
As a result, the Supreme Court should take special care to guide—or “rein in”—its judicial inferiors in these areas. But the Justices may feel considerable pressure not to issue broad, rule-like doctrines in precisely these high-profile contexts—particularly when the Justices perceive that the Supreme Court is under attack. Broad doctrinal rules raise the stakes of any decision and could invite additional attacks against the Court or even lead to noncompliance. Accordingly, the Justices may be tempted to issue narrow decisions or flexible standards or to deny certiorari in high-profile cases—and allow the lower federal courts to work out the details. In short, to preserve the external reputation (sociological legitimacy) of the Supreme Court, the Justices may opt not to issue the broad, rule-like doctrines most conducive to legal change.
But that leads to a second tradeoff: There are considerable risks to the lower courts when they must take the lead on the content of federal law in high-profile areas. As noted, absent clear guidance from the Supreme Court, inferior federal judges tend to be more influenced by ideology in ruling on certain high-profile cases, such as those involving abortion or affirmative action. At a minimum, political actors and interest groups assume that the law in these areas will depend on the composition of the lower federal courts.
This assumption puts pressure on Presidents and senators to emphasize judicial ideology in lower federal court appointments. And, indeed, over the past several decades, the selection of inferior federal court judges has grown increasingly partisan and divisive.
Some research suggests that this very divisiveness undermines public respect for—that is, the legitimacy of—the lower federal courts.
We thus see the twofold dilemma: To avoid sacrificing the legitimacy of the Supreme Court, the Justices may sacrifice both meaningful legal change and the long-term legitimacy of the inferior federal bench.
Two prominent historical episodes vividly illustrate this conundrum.
The “all deliberate speed” formula in Brown II was, in significant part, an effort to protect the Court’s public reputation; the Justices worried that segregationists would refuse to comply with a firm deadline.
This opaque test, in turn, both sacrificed meaningful legal change and delegated desegregation to the inferior federal judiciary—leading to some of the earliest lower court confirmation wars. In Planned Parenthood v. Casey, the Justices—again, to protect the Court’s sociological legitimacy—declined either to overrule Roe v. Wade or to retain its broad, rule-like trimester framework.
Instead, the Court crafted the “undue burden” standard, which inferior federal judges have applied in distinct and often ideologically predictable ways.
This test has also raised the stakes for—and the contentiousness of—lower court selection.
Recent events underscore the risks to the inferior federal judiciary. There seems to have been an uptick in negative rhetoric about the lower courts—including, specifically, accusations that federal judges decide cases on ideological grounds. President Trump, for example, denounced adverse lower court rulings as the handiwork of “Obama judges.”
Although Chief Justice Roberts and other jurists have pushed back against the charge that there are “Obama judges” or “Trump judges,”
some commentators insist that lower court judges vote in ideologically predictable directions.
This commentary has, however, failed to appreciate that any such ideological voting depends in significant part on Supreme Court precedent. The Court could rein in its judicial inferiors through broad, rule-like doctrines—and thereby help protect the public reputation of the lower federal courts. But the Justices may opt instead for opaque tests in an effort to safeguard the reputation of the Court itself.
This analysis has important implications for constitutional scholarship and jurisprudence. First, this account pushes against the assumption of some scholars that the Supreme Court can easily resolve controversial issues of constitutional law and thereby launch a constitutional revolution.
To the extent that the Justices are concerned about the Court’s public reputation, they may be least inclined to resolve precisely those issues on which lower courts most need guidance.
Second, and more fundamentally, this analysis underscores that scholarship on judicial legitimacy has focused too narrowly on the Supreme Court.
Many scholars argue that the Justices should decide cases with an eye to protecting the Court’s sociological legitimacy.
Alexander Bickel and Cass Sunstein, for example, urge the Court to issue narrow (“minimalist”) rulings or deny certiorari in controversial matters so as to avoid provoking external criticism.
These scholars have overlooked the impact that such narrow or nonexistent decisions may have on the long-term legitimacy of the remainder of the federal bench. As this Essay underscores, once we take into account the entire judicial system, it is far from clear which level of the federal judiciary is better equipped to shoulder external attacks.
At the outset, a few points of clarification. First, this Essay focuses on sociological legitimacy: the external reaction to the decisions of the Supreme Court and the lower federal courts. But this Essay does not simply consider the reaction of the general public; the broader public is often unaware of the actions of the judiciary, particularly the lower courts. Accordingly, this Essay also considers—as relevant to sociological legitimacy—the perspective of government officials and political elites (including interest groups) who tend to care deeply about judicial decisionmaking.
When the Justices refrain from issuing a broad ruling, they may be concerned about the reaction of any of these external groups.
Likewise, any of these groups may zero in on the composition of the inferior federal courts.
Second, this Essay does not claim that there is a legitimacy tradeoff with respect to every constitutional question. The analysis here focuses on legal issues that are both highly salient and contested, such as abortion, affirmative action, and gun rights. In less salient (or less contested) areas of constitutional law, the Justices may have little to lose in articulating clear doctrine, and lower court nominees are unlikely to be quizzed about their views on low-profile issues. But notably, the category of highly salient and contested areas is not a static one. An issue may become more or less salient over time.
This Essay thus does not aim to define a fixed set of highly salient and contested issues but instead seeks to identify a phenomenon—legitimacy tradeoffs within the federal judicial hierarchy—that can arise with respect to whatever divisive issues exist at a given point in our constitutional development.
Finally, this Essay does not argue that the contentious nature of lower court selection can be traced exclusively to Supreme Court doctrine. There are several interrelated factors, including the rise in party polarization, the growing influence of interest groups, and changes in Senate procedure.
But the historical events and social science research canvassed in this Essay demonstrate that the Court’s doctrinal choices are an important—and largely overlooked—contributing factor.
The analysis proceeds as follows. Part I introduces readers to the literature on legitimacy, which has long emphasized the Supreme Court alone. Part II then provides a historical overview of how the Court has struggled to provide clear guidance on high-profile issues, such as desegregation and abortion, and both Parts II and III explore how that lack of guidance impacts the lower federal courts. Finally, Part IV examines how this analysis implicates normative debates over judicial legitimacy, minimalism, and the passive virtues. Jurists and scholars, this Essay contends, should begin to reckon with the legitimacy tradeoffs within our hierarchical system.