David Law

How to Rig the Federal Courts

PUBLISHER
Georgetown Law Journal
DATE
2011
 

Abstract

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.

Citation

David S. Law, How to Rig the Federal Courts, 99 Georgetown Law Journal 779-836 (2011).
 

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