Federal Courts Of Appeals Research Articles

Non-Capital Habeas Cases after Appellate Review: An Empirical Analysis

In 2007, researchers from the National Center for State Courts and Vanderbilt University Law School reported the findings from a study of litigation in 2384 randomly selected, non-capital habeas cases, approximately 6.5% of the non-capital habeas cases commenced in federal district courts in 2003 and 2004 by state prisoners. In this article, I update that report, including the cases that were pending when the 2007 report was prepared, following the study cases into the federal courts of appeals, and back into the state courts. Even after appellate review of denials and dismissals, the percentage of non-capital petitioners receiving federal habeas relief remains less than the 1% rate reported prior to AEDPA. Descriptive findings include appeals and requests to file successive petitions by circuit, and rulings on certificates of appealability by circuit. Detailed information regarding each case receiving relief in federal court is also included.

Free Exercise of Religion Before the Bench: Empirical Evidence from the Federal Courts

We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key extra-judicial factor — judicial ideology — our main finding is that judicial ideology did not correlate with case outcomes. While judicial ideology did not emerge as a significant influence in the Free Exercise context, however, other variables did. Notably, Muslim claimants fared poorly, cases involving exemption from anti-discrimination laws were significantly more likely to result in pro-accommodation rulings, and Asian and Latino judges as well as judges who were former law professors were particularly amenable to Free Exercise and accommodation claims. On balance, our results paint a more complex and nuanced picture of how extra-judicial factors inform Free Exercise and accommodation litigation outcomes as well as judicial decisionmaking more generally.

The New Federal Circuit Mandamus

This Article explores an ongoing revolution in the mandamus jurisprudence of the U.S. Court of Appeals for the Federal Circuit, the court of appeals with nearly exclusive jurisdiction over patent cases. Before December 2008, the Federal Circuit had never used the interlocutory writ of mandamus to order a district court to transfer a case to a more convenient forum, denying each one of the twenty-two petitions it had decided on that issue. Since that time, however, the court has overturned eleven different venue decisions on mandamus. Remarkably, ten of those eleven cases have come from the same district court, the U.S. District Court for the Eastern District of Texas. This use of mandamus to repeatedly overturn discretionary, non-appealable rulings of one district court is unprecedented in any federal court of appeals. What makes the Federal Circuit’s cases particularly notable is that the court, not long ago, would grant mandamus only on issues governed by Federal Circuit patent law. Because transfer of venue is a non-patent issue controlled by regional circuit law, the recent cases plainly would not warrant mandamus under the court’s prior, narrower standard. The court’s focus on the Eastern District of Texas is also interesting because of the popular view that the Eastern District is biased in favor of patent holders and denies transfer motions with impunity. This is the first article to analyze the Federal Circuit’s retreat from its original, restrained view of mandamus. It begins by considering why the Federal Circuit initially believed it could grant mandamus on patent issues only, a question previously ignored by the literature. The Article then explores why, in its recent cases, the court has abandoned the view that Federal Circuit mandamus should be limited to issues of patent law. Surprisingly, the Federal Circuit has never explained its reasoning. The Article fills this analytical void and develops a doctrinal, theoretical, and pragmatic rationale for Federal Circuit mandamus on non-patent issues. The Article also offers possible explanations for the Federal Circuit’s fixation on the Eastern District of Texas and proposes a new analytical framework for Federal Circuit mandamus—a framework that might emerge if the court were to critically examine its mandamus power.

Ideological Voting Applied to the School Desegregation Cases in the Federal Courts of Appeals from the 1960's and 1970's

Ideological Voting Applied to the School Desegregation Cases in the Federal Courts of Appeals from the 1960's and 1970's

The War on Terror as a Metaphor for Immigration Regulation: A Critical View of a Distorted Debate

The “war on terror” represents a powerful metaphor reaching into the everyday lives of millions of non-U.S. citizens and citizens alike, both domestically and abroad. The “war” has skewed the debate, specifically regarding immigration regulation and reform. It is especially pernicious because it operates, on an unconscious level, on our unstated assumptions about immigrants and immigrant populations. In this Article, the authors begin with a discussion of the so-called “anchor” babies, now transmogrified into a new, scarier concept, “terror” babies. This is a good starting point for the discussion because it illustrates quite poignantly the ways in which the rhetoric has driven the debate to the point of absurdity and hyperbole. We then address the proliferation of terror-related grounds of inadmissibility and deportability. The issues which have come up in proceedings center around the malleability of the term “material support,” the exceedingly large breadth of scope in the term “terrorist activity,” as well as the difficulties which follow from allowing for the incorporation of the inadmissibility grounds into the parallel ground of deportability in section 237 of the Immigration and Nationality Act (“INA”). Equally disturbing are the misunderstandings surrounding the term “illegal immigrant.” We argue for a more nuanced approach which takes into account the range of available relief depending on the nature and history of one’s undocumented status. Throughout the discussion, there is the recognition that governmental actors have latitude, sometimes enormously wide latitude, to interpret the laws. It is often in these interstices where abuse occurs. We next discuss the fugitive disentitlement doctrine, and the trend to apply the doctrine outside of its normal confines in the context of criminal defendants and to deprive the courts of jurisdiction to hear the appeals of immigrants. We point out the infirmities with applying the fugitive disentitlement doctrine in the context of immigration. In the Real ID Act, among other legislation, there are severe jurisdiction-stripping provisions which have deprived federal district courts, in habeas proceedings, of the power to review final orders of removal, and modified the jurisdiction of the federal courts of appeals to hear immigrants’ appeals in other important ways. We argue that in these provisions the Real ID Act violates the Suspension Clause. In our conclusion we argue that metaphors certainly help us to interpret the world by making connections between disparate concepts. However, metaphors are not merely “figures of speech” but can result in tools of powerful persuasion. The danger of equating terrorists with immigrants and vice versa through the metaphor of the war on terror has become a very real threat to immigrants’ rights, and by extension, to all our rights, citizens and non-citizens alike.

Federal Court Rejects Challenge to Insurance Mandate

Two recent challenges to the Affordable Care Act lack merit for consideration, finds a federal appeals court, while a district court deems the law unconstitutional.

Religion, Schools, and Judicial Decision Making: An Empirical Perspective

We analyze various influences on judicial outcomes favoring religion in cases involving elementary and secondary schools and decided by lower federal courts. A focus on religion in the school context is warranted as the most difficult and penetrating questions about the proper relationship between Church and State have arisen with special frequency, controversy, and fervor in the often-charged atmosphere of education. Schools and the Religion Clauses collide persistently, and litigation frames many of these collisions. Also, the frequency and magnitude of these legal collisions increase as various policy initiatives increasingly seek to leverage private and religious schools in the service of education reform. Our analyses include all digested Establishment and Free Exercise Clause decisions by federal court of appeals and district court judges from 1996 through 2005 that involved elementary and secondary schools. As it relates to differences between school and other (or non-school) cases, our main finding is that both measures of judicial ideology correlate with the likelihood of a pro-religion decision. That is, Republican-appointed judges were more likely than their Democratic-appointed counterparts to reach a pro-religion decision in school cases, and ideology did not correlate with a pro-religion outcome in non-school cases. Results using common space scores as a proxy for ideology were similar. Although these results dilute the strength of the “legal model” of judicial decision making, this type of case (religion) in this particular context (schools) are particularly amenable to ideological influence.

Qwest Communications: A Case Study Of Fraud And Greed

This case study examines the unethical and illegal activities that occurred at Qwest Communications. Headquartered in Denver, Colorado, top level managers at Qwest fraudulently manipulated the firms financial reports in order to artificially inflate Qwests revenue and profit levels. Former Qwest CEO, Joseph Nacchio, was charged and convicted of insider trading by selling Qwest stock during the time period when the fraud occurred within the company. In March 2008, Joseph Nacchios conviction was overturned by a federal appeals court.

The Immigration Battle in American Courts. By Anna O. Law. New York: Cambridge University Press, 2010. 266 pp. $90.00 cloth.

The Immigration Battle in American Courts. By Anna O. Law. New York: Cambridge University Press, 2010. 266 pp. $90.00 cloth. In The Immigration Battle in American Courts, Anna O. Law uses immigration law as a case study to provide a compelling analysis of the different developmental paths of the two highest U.S. federal courtsFthe Courts of Appeals (the Third, Fifth, and Ninth Circuits) and the Supreme Court, for an impressive array of years: 1881 to 2002. Law, interested in institutional changes that occurred in these courts, utilizes a mixed-method analysis that yields three core arguments. First, the Supreme Court and Courts of Appeals operate in different institutional contexts; each court's unique context acts as a filtering mechanism that shapes the judges' perception of what they should be doing and how they should be doing it. Second, the contexts of both courts have slowly changed over time; as such, neither the Supreme Court nor the Courts of Appeals have played a static role in the federal judicial system. Third, the changing institutional settings of the courts have consequences for the courts themselves, for the occupants of those institutions, and in the case of immigration law, for the immigrants who appear before the courts. While the overarching theme of this study is institutional change, the book presents a strong and nuanced analysis of the institutional context for the creation of immigration law. Chapter 2 examines the immigration bureaucracy, from the Board of Immigration Appeals to the federal courts. Law analyzes the anti-immigrant reputation of the Supreme Court, arguing that it has gained this reputation largely because it has ceded power over immigration to Congress and the executive branch. Because the Supreme Court has the power to control its own docket, it is able to decide which immigration cases to review; at the same time, the Courts of Appeals must adjudicate all of the immigration cases that are appealed to them. The number of these cases, as Chapter 3 shows, has increased significantly, and, as Law convincingly argues, ''the confluence of congressional legislation first creating the structures and rules of the federal judicial system, the decision of immigrants to defend challenges to their immigration status, and the rise of immigration enforcement beginning in 1986 had the combined effect of further distancing and distinguishing the U.S. Supreme Court and the U.S. Courts of Appeals in their functions'' (p. 83). Because the Supreme Court grants certiorari to so few cases, the Courts of Appeals have taken on the brunt of immigration cases. Law quantifies this: Between 1881 and 2002, the Supreme Court decided 200 immigration cases, whereas the 11 Courts of Appeals decided 12,371 immigration cases combined (pp. 114, 115). The fact that the Courts of Appeals are more likely to be the last decision making body to address immigration cases suggests, as Law shows in Chapter 4, that these judges' preferred interpretations of statutes will stand (p. …

Why (And When) Judges Dissent: A Theoretical And Empirical Analysis

This paper develops and tests a model of self-interested judicial behavior to explore the phenomenon of judicial dissents, and in particular what we call “dissent aversion,” which sometimes causes a judge not to dissent even when he disagrees with the majority opinion. We examine dissent aversion using data from both the federal courts of appeals and the U.S. Supreme Court. Our empirical findings are consistent with the predictions of the model. In the court of appeals, the frequency of dissents is negatively related to the caseload and positively related to ideological diversity among judges in the circuit and circuit size (i.e., the fewer the judges, the greater the collegiality costs of dissenting and therefore, other things being equal, the fewer dissents). We also find that dissents increase the length of majority opinions (imposing collegiality costs by making the majority work harder) and are rarely cited either inside or outside the circuit (reducing the value of dissenting to dissenters). In the Supreme Court, we find that the dissent rate is negatively related to the caseload and positively related to ideological differences, that majority opinions are longer when there is a dissent, and that dissents are rarely cited in either the courts of appeals or the Supreme Court.

The Role of the Judiciary When the Agency Confirmation Process Stalls: Thoughts on the Two-Member NLRB and the Questions the Supreme Court Should Have, But Didn’t, Address in <i>New Process Steel LLC v. NLRB</i>

From January 2008 until March 2010 when two members received recess appointments, the National Labor Relations Board operated with only two of the five members that the National Labor Relations Act specifies for the Board. Although both President Bush and President Obama nominated members, the Senate declined to confirm them. Five members of the Supreme Court, along with one federal courts of appeals held that the NLRB may not operate with two members; four Justices and five courts of appeals held that it may. All of the reviewing courts relied mainly on dueling readings of the quorum and vacancy provisions of the NLRA. Showing that the statutory language, the legislative history and Chevron deference are insufficient to answer the question, this article calls for a functional analysis of what courts should do when a failure to nominate or confirm replacements threatens to render an agency incapable of enforcing the law.The Supreme Court’s decision in New Process Steel LLP v. NLRB was a lost opportunity for the Court to address some important questions about the role of reviewing courts when the nomination process stalls: Was the failure to Congress or the President to address the problem facilitated by the NLRB’s willingness to continue to operate with only two members? Would courts help the nomination process by forcing the Senate and the President to choose between confirming nominees and total shut-down? Or would allowing the failure of the confirmation to shut the agency down give a form of heckler’s veto that would ultimately damage the administrative state? Which is worse: agency shut-down or the formation of agency policy by a minority of the statutorily authorized members? To what extent is the risk of nominations stalling a problem unique to labor agencies or other highly-politicized agencies? To what extent has this problem gotten worse because of an increase in holds and filibusters? Does the ability to block a nomination, or the refusal to nominate a successor, allow the Senate or the President a kind of de facto repeal of the enabling statute? If so, is there anything wrong with that, or at least wrong enough that the courts should address it? These are the issues that the Court should have, but failed to, address in New Process Steel.

New directions in pollution control: the “Transport Rule”

New directions in pollution control: the “Transport Rule”

Kicking the Commies out of Public Housing: The Rise and Fall of the Gwinn Amendment, 1952–1956

In a 1962 book review of a compilation of Federal Appeals Court Judge Henry Edgarton's rulings, an anonymous writer declared that the so-called “Gwinn Amendment” had “reached a pitch of vindictiven...

Legally green

Sometimes, it's better to have more (as opposed to fewer) judges. Worldwide, the number of courts and tribunals that specialize in environmental issues has doubled over the past decade, primarily due to increasingly complex environmental regulations and growing concerns about damages to and depletion of natural resources. Recently, a joint study by the University of Denver and the World Resources Institute analyzed the dramatic international growth of environmental courts and tribunals (ECTs). The report cites some 354 ECTs, with about 170 created since 2005, in 41 countries. Indeed, many nations are revising their existing court structure to accommodate an environmental focus. Although designed to create new avenues of access to justice and environmental governance/protection, these specialized courts are not a new concept; courts earmarked specifically for environmental jurisprudence have been around for almost a century. For example, Denmark's Nature Protection Board of Appeal, focusing on the preservation of the “natural environment”, was created in 1917. Likewise, Sweden's Water Court, which concentrated initially on water rights issues, was established in 1918. Currently, ECTs fall into three general categories: (1) specialized courts with expert judges; (2) a segment of existing judicial systems with specialized expertise and functions (a so-called “green bench”); and (3) tribunals, which can be further divided into four subclasses: those operating independently (outside of environmental agencies), dependently (within an administrative agency), in solely a non-judicial administrative capacity (usually appealable to a court), and as special commissions. Although specialized local and state environmental bodies with some judicial and quasi-judicial functions have existed in the US since the 1970s, a comprehensive national system has yet to be developed. In 1990, the US Federal Courts Study Committee reported on a study of specialized courts within the Federal system, concluding that the existing Federal Court system was adequate for dealing with the volume and complexity of environmental cases. At the Federal level, one ECT – categorized as a tribunal – is the US Environmental Protection Agency's (EPA's) independent Environmental Appeals Board (EAB). Created in 1992, the EAB is composed of a four-judge panel that acts as the final EPA decision maker on administrative appeals concerning all major statutes falling under EPA jurisdiction. A case will not ordinarily reach the EAB until an EPA Administrative Law Judge or senior EPA official (or, in some permit cases, a state agency official with delegated authority to issue Federal environmental permits) has issued a decision on the matter and someone who is adversely affected by that decision submits an appeal. Thus, the EAB's caseload consists primarily of appeals connected with EPA permit and civil penalty decisions. Petitions for reimbursement of costs incurred in complying with cleanup orders – issued under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which was enacted in 1980 – are included within the EAB's caseload as well. The EAB is also authorized to hear appeals from various administrative decisions under the Clean Air Act's (CAA's) acid rain program and appeals of Federal CAA Title V operating permits. In all cases, decisions of the EAB are appealable to the Federal Appeals Court system. Alternatively, at the state level, for instance, the Vermont Environmental Court is a trial court with statewide jurisdiction over environmental matters. In addition to appeals – stemming from permit decisions and other actions of the Vermont Agency of Natural Resources (ANR), as well as from municipal land-use zoning and planning decisions – the Court hears enforcement cases regarding municipal land use and related actions brought by the ANR and Natural Resources Board. Almost all cases are heard by one or two of the dedicated judges with an evidentiary trial, usually in the county court in which the case arises. In Illinois, one finds a state tribunal similar to the EAB – the Illinois Pollution Control Board (IPCB). Created in 1970, the IPCB is an independent agency responsible for deciding contested environmental cases and – in a departure from some states' programs – for promulgating Illinois' environmental regulations and rulemaking functions. There are also currently more than 25 US cities and counties that have environmental courts dedicated to local environmental matters of both a civil and criminal nature, including associated areas such as health, safety, and building/zoning violations. For instance, the NYC Environmental Control Board has, since 1975, handled assorted environmental and local health and safety issues. Similarly, Shelby County's (which includes Memphis, TN) Environmental Court has dealt with all manner of environmental civil and criminal matters since 1983. If we believe former Supreme Court Chief Justice Charles Evans Hughes' statement, “The United States is the greatest law factory the world has ever known”, then the development of specialized environmental courts seems a logical product of those processes.

Chabad v. Russian Federation:A Case Study in the Use of American Courts to Recover Looted Cultural Property

AbstractDisplaced and nationalized cultural property remains hidden in the vast holdings of museums, libraries, and archives around the world. Some governments holding these “trophies” of war and conquest refuse to return such cultural treasures to their rightful owners even when their provenance has been identified. They assert that the collections were obtained through expropriation and nationalization, and that divestiture of a museum, library, or archive would jeopardize the existence of these institutions and cause societal discord.This article discusses the struggle of an orthodox Jewish organization to recover from the Russian Federation a collection of sacred, irreplaceable books and manuscripts seized in the aftermath of the Bolshevik Revolution and during World War II. The story of Agudas Chasidei Chabad's efforts to recover these core religious texts of its spiritual leaders has involved appeals by U.S. presidents, congress, and the U.S. Helsinki Commission, as well as lawsuits in the Soviet Union/Russia and United States.After prolonged litigation in the United States, a federal court of appeals in Washington DC ruled in 2008 that American courts have jurisdiction over Chabad's suit against the Russian Federation to recover its religious texts. This ruling may pave the way for the resolution of this dispute and also lead to the filing of other suits in American courts seeking to recover looted cultural property, even if that property is located outside U.S. borders.

'To Remand, or Not to Remand': Ventura's Ordinary Remand Rule and the Evolving Jurisprudence of Futility

It is a foundational principle of administrative law that a reviewing court should not dispose of a petition for review or appeal on grounds not relied upon by the agency, and should not reach issues in the first instance not addressed administratively. In such circumstances, there is a strong presumption that the reviewing court should remand the case to the agency for further proceedings rather than reach out to decide the disputed issues. The United States Supreme Court explicitly extended operation of the “ordinary remand rule” to the immigration context in its 2002 decision in INS v. Ventura. Notwithstanding subsequent Supreme Court clarifications of how this rule operates in immigration law, several federal courts of appeals have begun to develop a jurisprudence of futility, declining to remand cases to the Board of Immigration Appeals, despite errors in the underlying decision, in certain set circumstances.This article assesses this evolving jurisprudence with the aim of discerning whether it is somehow complementary to the “ordinary remand rule,” or runs afoul of the general remand prescription. In fact, many of the cases in which courts have held remand would be futile have little, or nothing to do with the courts’ authority to remand, while a number of the other cases surveyed represent legitimate exercises of the courts’ discretion to decline remand. Nonetheless, several decisions either explicitly contradict the Supreme Court’s remand directive, or give hints that, in certain cases, the court would feel free to decide an issue delegated to the agency’s discretion, even in the absence of an administrative decision in the first instance. Although the decision of whether to hold and decide a case, or whether to remand to the agency for further proceedings, is necessarily a subjective and discretionary determination, the article concludes that there are broad operating procedures that may appropriately govern the exercise of this discretion, ensuring that both reviewing courts and administrative agencies fulfill their mandates.

Defending the NLRB: Improving the Agency’s Success in the Federal Courts of Appeals

Commentators have made innumerable recommendations to improve the National Labor Relations Board’s administration of the National Labor Relations Act. Yet one subject that has been largely ignored in these discussions is the fact that no matter how good the administrative enforcement of the NLRA is, or could be, it will mean very little if the NLRB cannot defend its decisions in the courts of appeals. The stakes of this inquiry are high. Because the NLRB cannot enforce its own orders, any losing party can delay compliance with a Board order by seeking review before an appellate court. This delay itself can substantially undermine employees’ labor rights - particularly when a case involves representational issues, in which employees’ support for a union often diminishes as time passes. Yet the problems associated with delay are exacerbated if losing parties believe they have a good chance of winning before the courts. Although some parties may challenge a Board order no matter their chances, others may seriously weigh the costs and benefits of further litigation. For these parties, the prospect of reversing a Board order may lead to additional challenges, more delay, and ultimately an inability of employees to enjoy their labor rights. This article addresses this issue by proposing several reforms intended to improve the Board’s success in the courts of appeals. These reforms include attempting to improve the format and substance of NLRB decisions, increasing the emphasis on the standard of review, considering limited types of forum shopping, increasing the use of rulemaking, reducing delay, and requesting more injunctive relief. None of these strategies, if enacted, would be a silver bullet that would solve all of the difficulties that the Board faces in court. In the aggregate, however, they could improve the Board’s standing in the eyes of federal appellate courts, thereby improving the Board’s long-term success. Moreover, a renewed focus on the need to win before the courts of appeals could enhance the Board’s success in the short term by improving some of its individual decisions, thereby making them better candidates for court enforcement.

Why (and When) Judges Dissent: A Theoretical and Empirical Analysis

This paper develops and tests a model of self-interested judicial behavior to explore the phenomenon of judicial dissents, and in particular what we call “dissent aversion,” which sometimes causes a judge not to dissent even when he disagrees with the majority opinion. We examine dissent aversion using data from both the federal courts of appeals and the U.S. Supreme Court. Our empirical findings are consistent with the predictions of the model. In the court of appeals, the frequency of dissents is negatively related to the caseload and positively related to ideological diversity among judges in the circuit and circuit size (i.e., the fewer the judges, the greater the collegiality costs of dissenting and therefore, other things being equal, the fewer dissents). We also find that dissents increase the length of majority opinions (imposing collegiality costs by making the majority work harder) and are rarely cited either inside or outside the circuit (reducing the value of dissenting to dissenters). In the Supreme Court, we find that the dissent rate is negatively related to the caseload and positively related to ideological differences, that majority opinions are longer when there is a dissent and that dissents are rarely cited in either the courts of appeals or the Supreme Court.

Post-Burlington: What Employers and Employees Need to Know About Retaliation

Since the landmark decision in Burlington Northern & Santa Fe Railway Co. v. White, numerous federal district courts and circuit courts of appeals in the United States have considered employees’ retaliation claims. This paper reviews several post-Burlington cases and provides employers with a roadmap as to what has been held to be retaliation under the law and what has not. Our contribution is an up-to-date analysis of retaliation cases, on a specific employment action basis, to provide guidance to employers of the types of activity that could support a claim of retaliation and to employees to alert them as to the types of activity that they should not have to endure in the workplace.

Does Judicial Philosophy Matter? A Case Study

A leading theory in the study of judicial behavior is the attitudinal model. This theory maintains that a judge’s political ideology can be used to predict how a judge will decide certain cases, and other factors, such as the judge’s judicial philosophy, tend to be unimportant. Under this theory, the two judges with the same political ideology, but different judicial philosophies, should virtually always vote the same way in cases with predicted ideological outcomes. This manuscript tests the attitudinal model by examining opinions by two federal courts of appeals judges with very similar political ideologies, but different judicial philosophies: J. Michael Luttig and J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit. After defining the judges’ political ideologies and judicial philosophies, this study examines “political” cases in which one of these judges wrote the majority opinion and the other dissented. The result of the study is that when these judges came to different conclusions in these ideological cases, it is likely they did so on the basis of their judicial philosophies. In short, contra the attitudinal model, at least in some cases, judicial philosophy does matter.