The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


New Article: Bilateral Judicial Reform

This Article offers ten neutral proposals that would equally weaken the right and the left.


Most debates about judicial reform are predictable and pointless. Progressives, who are unhappy with the current right-leaning judiciary, propose reforms that make it harder for conservatives to prevail in court. Conservatives, who are pleased with the current right-leaning judiciary, oppose reforms that make it harder for conservatives to prevail in court. The federal courts cannot be reformed through unilateral disarmament. Rather, any federal judicial reform must be bilateral.

My new Article, titled Bilateral Judicial Reform, offers ten neutral proposals that would equally weaken the right and the left. The article will be published in the Texas A&M Journal of Law and Civil Governance.

Most of these reforms, including expansion of mandatory jurisdiction, would require statutory amendments, though some proposals could be achieved through court rules. Here at least, I'm agnostic where the reform comes from. It is always better if courts self-regulate. I'll admit up front that some of these proposals are off-the-wall, and are primarily intended to stimulate debate, rather than to create a decisive action plan. A few of these proposals may create problems with judicial independence and the separation of powers, though I think they ultimately pass muster, or at least occupy a gray zone. My hope is that through some outside-the-box thinking, I can put ideas into the ether that eventually coalesce into tangible proposals.

This article is still in draft form, so I welcome feedback and comments.

Part I introduces the first grouping of reforms about the Supreme Court Justices.

  • Proposal #1: Require Justices to ride circuit and preside when federal courts of appeals sit en banc.

Proposal #1 would bring the Justices closer to the inferior courts, and to the people. Under this proposal, whenever a circuit court sits en banc, the circuit justice would preside. Should the case then be appealed to the Supreme Court, the Circuit Justice would not need to recuse. And unlike the current practice, the circuit justices would rotate each year, so each member of the Court would, over time, visit courts throughout the nation. This proposal would promote both vertical and horizontal judicial comity. Moreover, the Justices may get a better sense of which petitions warrant a grant by hearing from colleagues on the lower court.

  • Proposal #2: Impose statutory caps for outside income earned through book royalties, advances, and other similar business dealings.

Proposal #2 limits a Justice's ability to profit off their position. In recent years, new Justices have signed lucrative book deals that pay millions of dollars. While there are caps on how much Justices can earn from outside sources, there is a glaring loophole for advances on royalties. As a result, book publishers can give a Justice what is in effect an indefinite interest free loan that is ten times greater than their annual salary. In theory at least, the Justices would have to pay back any unearned royalties, but I am skeptical that loan would ever be called on during a Justice's life. I am confident that outside groups will feel pressure to buy copies of the book to ensure a Justice's attendance at a public event, and book signing. There is no way to avoid this conflict when the pressure exists to repay the royalty advance. Proposal #2 would simply include advances on royalties in the current cap on outside income. The Justices can continue to write books, but cannot earn millions of dollars off the prestige of their judgeships. If the Justices lose the motivation to write books without cushy royalty payments, they can use that found time to read more cert petitions.

Part II introduces the second grouping of reforms about the Supreme Court's docket.

  • Proposal #3: Mandate that the Supreme Court remains in session year-round, with at least one public sitting for oral argument and one conference per calendar month.

Proposal #3 would eliminate the current October-June schedule. Instead, the Justices would remain in session year-round. Each month, the Justices would hold at least one public sitting for oral argument, which would entail at least one conference to vote on the argued cases. This proposal has several virtues. The Justices would no longer feel compelled to rush out a decision argued in April by the end of June, solely to meet some artificial vacation-induced deadline. This proposal would also allow the Court to grant cert petitions year round, and avoid the dead pool that is the long conference. This proposal can be implemented by the Court on its own, or through Congress.

  • Proposal #4: Establish a standard timeline for review of petitions and applications on the merits, emergency, and capital dockets.

Proposal #4 would make the Supreme Court's calendar more predictable, as the Justices would follow a timeline to resolve cases. First, on the merits docket, the Court would have to rule on a petition for certiorari within ninety days after it is filed. If the court does not act on the petition within that window, the petition would be denied as a matter of law. Second, if the Court fails to act on an emergency application on the emergency docket within the span of two weeks, the application will be denied as a matter of law. Third, on the capital docket, emergency appeals that are filed less than six days before the death warrant expires would (generally) be denied as a matter of law. (I say generally because there are exceptions.) This proposal would severely curtail the eleventh hour filings that force the courts to rush through capital cases in limited time.

  • Proposal #5: Appeals in the Court's mandatory jurisdiction must be scheduled for oral argument.

Proposal #5 would require the Court to hold oral argument for any case in the mandatory jurisdiction. (And Proposals #8 and #9 below will further expand the Court's mandatory jurisdiction.) In theory at least, the Court could still issue a one-sentence summary affirmance of a mandatory jurisdiction case. But I suspect that going through the motions of oral arguments will trigger the Justices to develop a fully-reasoned opinion. (I am less confident that Congress could mandate that the Justices write an opinion of some length in any particular case.)

Part III introduces the third grouping of reforms about litigation in the lower courts.

  • Proposal #6: Cases seeking a temporary restraining order can be decided by a single district court judge but can only yield relief to the named parties, and are limited to no more than seven days in duration.

Proposal #6 will make TROs restrained again. Going forward, any relief granted by a temporary restraining order would be limited to the named parties. No more universal, non-party TROs. Class-action certifications would not be permitted at the TRO stage. And because the relief would be so limited, it will be less likely that parties file an emergency mandamus petition to halt these restrained orders. Moreover, TROs would be limited in duration to seven days. Again, a party-and-time limited TRO is less likely to justify an emergency appeal. Any relief longer than a week would require some sort of preliminary injunction, which can be appealed in the normal course.

  • Proposal #7: Cases seeking a preliminary injunction or equivalent relief against the federal government or a state government are referred to the en banc court, which appoints a randomly-drawn three-judge panel with two circuit court judges and one district court judge.

Proposal #7 would cause a substantial change in how preliminary injunctions are litigated. Motions for a preliminary injunction, or the equivalent under the Administrative Procedure Act, would no longer be decided in the first instance by a single district court judge, followed by an appeal to the circuit court. Instead, those cases would be referred to a three-judge district court. And unlike the current process, in which the Chief Judge of the Circuit unilaterally selects two district court judges and one circuit judge, under Proposal #7, the full en banc court would randomly select two circuit judges who would join the district court judge to whom the complaint was initially assigned. The case would be litigated in that district judge's court, so the plaintiffs' choice of venue would be respected. Further unlike the current process, appeals from these three-judge district courts would not necessarily be appealed to the Supreme Court's mandatory jurisdiction.

  • Proposal #8: Injunctions of statutes against the federal and state governments are automatically stayed, and if a three-judge panel submits a "certificate of division," the case is appealed to the Supreme Court's mandatory jurisdiction, with oral argument and decision based on emergency docket timeline.

Proposal #8 would bifurcate appeals from a three-judge district court to the Supreme Court. First, injunctions against federal and state statutes would automatically be stayed pending review by the Supreme Court. There would be no need for the parties to seek an emergency stay from the Supreme Court. Second, injunctions against federal and state executive actions would not automatically be stayed. The parties would still have to seek an emergency stay from the Supreme Court, albeit on the timeline in Proposal #4. When the three-judge district court is unanimous, the case can be appealed to the Supreme Court's discretionary docket. But a divided three-judge panel that splits 2-1 will submit a "certificate of division," which will trigger the Supreme Court's mandatory jurisdiction. Cases with a certificate of division on the mandatory jurisdiction docket case will be set for oral argument at the next session, and resolved on the emergency docket timeline. (If this all sounds confusing, don't worry, I include a flowchart below.) Proposals #4 and #8 would regularize the process by which emergency docket cases are litigated. There's more.

  • Proposal #9: En banc circuit courts and state courts of last resort could submit cases to Supreme Court's mandatory jurisdiction with a "certificate of split" (actual split of authority on question of federal law) or a "certificate of importance" (case presents an exceedingly important, and unresolved question of federal law).

Proposal #9 would give the inferior courts the power to control the Supreme Court's docket. The en banc circuit courts, as well as the state courts of last resort, would be able to refer specific classes of cases to the Supreme Court's mandatory jurisdiction. First, these courts can submit a "certificate of split," in which a case presents an actual split of authority on a question of federal law. As things stand now, petitioners routinely exaggerate the depth and width of circuit splits, as respondents routinely downplay those splits. That puffery and anti-puffery would be a thing of the past. Now, the courts could candidly determine which splits the Supreme Court should promptly settle. It is well known that the Court is granting fewer petitions, and letting splits linger. I would invert that pyramid. Second, these courts can submit a "certificate of importance," for a case that presents an exceedingly important, and unresolved question of federal law. These latter certificates can be submitted in advance of any splits forming, but where there is some novel and important issue that would benefit from prompt Supreme Court review. Both types of certificates can be submitted at any juncture—after the three-judge panel rules, before an en banc poll is taken, after a case is argued before the en banc court, or after the en banc court decides the case. This proposal, I think, would be very popular with lower-court judges, but not with the nine Justices.

  • Proposal #10: When Circuit Judge reaches "Rule of 80," she is no longer able to vote on en banc court, and new judgeship is automatically created.

Proposal #10 will not be popular with the lower-court judges. At present, federal judges can take senior status at any time after they reach the so-called "Rule of 80" date. Judges must be at least sixty-five years old, and their years of service and age must total eighty. Judges have been known to strategically time their taking of senior status, so their preferred President can make the replacement. Some judges have been known to condition their taking senior status on a particular person replacing them. Several judges have publicly withdrawn their taking of senior status when the wrong replacement was selected. All of these backroom machinations would cease with Proposal #10. As soon as a Circuit Judge reaches the "Rule of 80" date, a new statutory judgeship is automatically created that the President can fill. At that same instant, the circuit judge remains on active status, but can no longer vote on the en banc court. These judges can still elect to take senior status at any time, but they lose the primary benefit of holding onto active status—participation in the en banc court. This approach would allow the en banc courts to turn over more quickly, and would regularize circuit court appointments. I told you lower court judges would not like this approach.