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Madison Lecture

In this Lecture, I offer my own definition of judicial activism: In deciding a case, a court or judge engages in judicial activism when the court or judge eschews the use of a judicial decisional tool traditionally employed to adjudicate that type of case. In other words, judicial activism involves throwing a long-recognized decisional tool—or, in Justice Marshall’s words, “mediating principle[]”—out of the judicial toolkit. Under my definition, for example, the Supreme Court would engage in judicial activism if it refused without explanation to apply the doctrine of stare decisis, given that stare decisis stands at the center of the common-law tradition we inherited from England and has been applied since the earliest days of the republic.

Why does such behavior amount to judicial activism? Because refusing to apply a long-recognized mediating principle eliminates a constraint on a court’s exercise of its decisional discretion. When judges refuse to apply a long-standing interpretive tool, they necessarily expand the universe of situations in which they, in Judge Posner’s words, “bring [their] own policy preferences to bear in order to decide the case at hand.”

To be sure, there necessarily are times when judges must rely on their own policy preferences to decide a case. But, from my perspective, simply ignoring without comment a well-established mediating principle generally applicable in the type of case at issue—or justifying the act of discarding a fundamental principle by relying on a legal or policy argument as to the undesirability of that principle—is a fundamentally activist enterprise.

My Lecture will proceed as follows. First, I survey the origin of the term “judicial activism” and the various ways it has been defined by judges and scholars. Those definitions generally fall into two categories: those focused on outcomes and those focused on the process a judge applies in reaching an outcome. Second, I set forth my own definition of judicial activism—which falls into the process category—and explain why I believe that definition gives meaning to the principal concern animating accusations of judicial activism: that the judiciary is stepping outside of its proper role and unjustifiably deciding cases based on its own policy preferences. Third, I explain some means by which activism (as I define it) enters judicial decisionmaking. Finally, I apply my definition to demonstrate why the judicial interpretive methodology of textualism and the recent Supreme Court partisan gerrymandering decision, Rucho v. Common Cause, are stark examples of judicial activist behavior.

Conferencia Brennan

IJA Brennan Lecture

This Article considers when optional case citations may do more harm than good. There are valid reasons for citing to non-binding precedent—to promote consistency in the law, for example, or to avoid wasteful redundancy. But unconsidered invocations of non-binding authority may also introduce error into individual opinions and distort the path of the law over time. This Article catalogues such dangerous citations as used in particular by federal district courts citing to other federal district courts with three goals in mind: to help judges use non-binding authority constructively, to help law clerks think critically about their citation practices, and to help readers of judicial opinions question the rhetoric of constraint.

In mapping these problematic uses of non-binding authority, the Article distinguishes between poorly conceived citations and poorly implemented citations. Poorly conceived citations are those for which non-binding precedent is simply not a useful authority. Examples of poorly conceived citations include reliance on prior opinions to establish facts or the content of another sovereign’s laws. Poorly implemented citations are those for which non-binding precedent may be relevant but should be selected and applied with care. Examples of poorly implemented citations include over-extended analogies and reliance on judge-made tests that are misaligned with the question being evaluated. This catalogue of poorly conceived and poorly implemented citations surfaces some common themes, including the need for better-designed tests and the challenges posed by modern research methods. But dangerous citations are not simply a matter of inadvertence, carelessness, or mistake; they may also be deployed for rhetorical purposes, in particular to signal legitimacy and restraint. The Article thus ends with a warning against “performative judging,” or the use of excessive citations to suggest greater constraint than the law in fact provides. Such citations are dangerous not just for the error they may introduce, but also because they obscure judicial choice and the inherently discretionary nature of judging.

Sandra Mayson, in her article Dangerous Defendants, points out the ways in which pretrial detention on the basis of public safety risk violates the “parity principle”—a measure of decisionmaking fairness that evaluates whether individuals of like risk are treated alike. As Mayson convincingly argues, if public safety risk is what justifies detention of those who have been arrested, it should also justify preventative detention of similarly risky people who remain in the community at large. In other words, merely having a person in custody does not logically change the analysis of the risk they present or what should be done with them.

In this Article, I argue that psychological factors, not assessments of risk, can explain why the parity principle is violated. A person in custody and a person in the community may present the same level of public safety risk, but the human brain typically uses heuristics, not calculations, to make decisions. Our brains want to minimize losses and regret. Whenever something bad happens, our brains automatically generate counterfactuals—the “if only I had done X” hypotheticals that allow us to imagine (and believe in) a world where tragedy would have been avoided. Counterfactuals that eliminate harm are easy to generate when someone is in custody, but hard to generate when someone is at large, and our brains conflate ease of generation with real-world probability. Counterfactuals, then, may help explain why the pretrial, public safety default seems to be to keep someone locked up, “just in case”—and why this desire is resistant to information and argument.

This Article adds an important dimension to the ongoing debates about whether judicial discretion or actuarial tools should govern pretrial release decisions. Judicial discretion may be biased towards incapacitation by operating on the “gut level” of psychology—even if the harms of detention outweigh the benefits. Across the United States, jails contain thousands of prisoners who could be released safely, who could resume work and the rest of their lives, but who remain incarcerated because of the fear that one of them might commit a sensational crime. The insights of this Article may also apply more generally to a host of similar problems, including parole release, executive clemency, diversion programs, and the removal of children from potentially abusive parents, and suggest that policymakers and reformers be cognizant of the way in which current criminal justice thinking is short-sighted, overly reactive, and biased towards incapacitation. By applying theories of the counterfactual proposed by Neal Roese and other behavioral psychologists, the Article provides an explanation for why, even when regulations change, judicial decisions to release arrestees may remain low. It suggests that experimental research specifically targeting judicial counterfactual thinking should be conducted.

Brennan Lecture

Threats to judicial independence are most commonly viewed as arising either from politically motivated depredations by other branches of government, or from improper inducements or coercion from individuals or groups in the wider society. Both types of threats are external to the court. What of the internal environment within which judges operate, particularly the immediate environment comprised of their colleagues on the bench? Drawing on a judicial career spanning thirty-seven years, including fifteen as a U.S. District Court judge and the past seven in my present position on the U.S. Court of Appeals for the Sixth Circuit, as well as on legal scholarship and the perspectives of other jurists past and present, I will address what one scholar calls the “complicated interdependent decisions” faced by judges on multi-member courts. This Lecture will explore the often complex calculus and subtle intrajudicial considerations that go into a judge’s decision whether—and, if so, how—to dissent in a particular case. I encourage reflection both on the costs that dissent exacts on the individual judge and on the court as a whole, and on the enormous value it can have as an expression of legal conscience and even, on occasion, as a voice of prophecy pointing to future change in the law. Ultimately, I view the right to dissent as precious, and a pillar of judicial independence.

When a court invalidates a federal government policy, it must then decide the scope of the remedy. A common remedy is an injunction—a judicial order prohibiting enforcement of the policy. Traditionally, lower federal courts enjoined the government only from enforcing the invalidated policy against the victorious plaintiff, leaving it in place against other members of the public. A nationwide injunction, however, forbids the government from enforcing the policy against anyone in the country, effectively taking the policy out of circulation. This Note argues that nationwide injunctions contravene three core structural principles of the federal courts: (1) the regional design of the courts of appeals without intercircuit stare decisis, (2) the Supreme Court’s holding in United States v. Mendoza that the federal government is not subject to non-mutual issue preclusion, and (3) the doctrine of intercircuit nonacquiescence. It concludes that nationwide injunctions against the federal government should be disfavored and that such injunctions should not extend beyond the circuit of the enjoining court. Simply put, lower federal courts should not make nationwide law.

To date, no international criminal tribunal has seriously considered using a jury trial. In the International Criminal Court (ICC), for example, a panel of judges appointed by the Assembly of States Parties acts as the fact finder. In this Note, Amy Powell examines the theoretical justifications for a jury in the context of international criminal adjudication. She concludes that the use of a jury–or, at a minimum, the integration of the important values underpinning the institution of the jury–would greatly benefit the ICC by protecting important principles of justice.