Matthew Tokson’s recent article, Judicial Resistance and Legal Change, explores the possibility that the very judges charged with implementing new doctrines or other legal rules will sometimes end up resisting them instead. This brief response makes two basic points. First, although Tokson convincingly explains why “scholars looking for non-compliance in highly publicized constitutional law cases have been looking in exactly the wrong place,” I argue that his own map needs at least one important additional marker: the extent to which a particular judicial action will (or will not) be subject to meaningful appellate review. Second, I suggest that, despite its intuitive appeal, the concept of “judicial resistance” is surprisingly (and perhaps, intractably) hard to pin down and should be abandoned in favor of a broader approach focused on potential barriers to changing judges on-the-ground behavior.
Toby J. Heytens, Changing What Judges Do, 82 University of Chicago Law Review Dialog, 151–161 (2015).