Life Tenure Research Articles

The Ghost of John Hart Ely

The ghost of John Hart Ely haunts the American liberal constitutional imagination. In spite of the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely’s conjectures about the superiority of judges relative to legislatures in the protection of minorities and the policing of the democratic process remain second nature. Indeed, they have been credible enough among liberals to underwrite an anxious or even hostile attitude toward judicial reform. In order to exorcise Ely’s ghost and lay it to rest, this Article challenges his twin conjectures. First, the Article argues that there is little historical and no theoretical basis for the belief that courts will outperform legislatures in overcoming even deeply entrenched historic discrimination against deserving minorities — even as courts act to entrench the power of undeserving ones, like the powerful and wealthy today. Second, the Article contends that Ely’s almost complete failure to anticipate the inaction of the judiciary in policing the democratic process — except when judges assist their own ideological allies — is devastating for his theory, which depended precisely upon an empirical prediction. Ely’s conjecture about the comparative superiority of judges in policing the democratic process has proved untrue because he ignored ideological affiliation (focusing exclusively on personal self-interest) in supposing that, with their independence and life tenure, judges are less likely to act in self-dealing fashion than politicians. And the deepest reason for the ideological affiliation of judges, who often exacerbate what many take to be the worst pathologies of democratic exclusion, is that identifying what arrangements count as more rather than less democratic is itself a matter of intense ideological division. If Ely’s two conjectures fail, nothing remains to support the conclusion that judges deserve excess countermajoritarian power, leaving democracy’s shortcomings to be remedied within democratic politics — which is, in turn, the most desirable future of liberal constitutionalism.

Written Testimony of Marin K. Levy on "Court Expansion and Other Changes to the Court's Composition" for The Presidential Commission on the Supreme Court of the United States

Court expansion and other changes to the Court’s composition implicate fundamental questions about the role and operation of our nation’s highest court. These include whether expanding the Court would harm the institution’s legitimacy, whether expansion would prompt a series of expansions in the future, whether an expanded Court could function well as a single decision-making body, and whether expansion would contradict existing constitutional norms and conventions. Even if the answers to these questions were known, there is a larger background question to be answered—namely how such considerations should be weighted in assessing any proposal to change the Court’s structure. It is no easy task that the Commission has been given, and I hope that the legal community and public at large is cognizant of this. In contrast to the subject of the panel, my own testimony will be fairly circumscribed. What I hope to offer the Commission is additional context by providing information about recent changes and attempts to change the size of state supreme courts. The descriptive analysis that follows does not itself constitute a normative argument. Rather, my goal is to provide the Commission with intra-country comparative data concerning changes to court structure, from which the Commission can draw its own conclusions. I would stress at the outset that I believe experiences with state court expansion do not offer easy lessons about the wisdom of the enterprise; and, as in any comparative discussion, one should be mindful of the differences between systems when attempting to derive meaning. Those differences include, inter alia, that the majority of state supreme court justices are not appointed but elected, that the majority serve for terms and must be reelected (or, less often, reappointed) to continue service, and that the majority have mandatory retirement ages and not life tenure. Part I will provide information regarding attempts (and successes) to alter the size of the highest court in eleven different states over a recent period of approximately one decade. Then, Part II will briefly consider the size of each state court of last resort, as they stand today.

Reform Through Resignation: Why Chief Justice Roberts Should Resign (in 2023)

On September 29, 2023, Chief Justice Roberts will have served exactly eighteen years on the Supreme Court. He should mark this occasion by doing something extraordinary: resigning. By doing so, the Chief Justice could create a new norm whereby Supreme Court Justices agree to serve staggered eighteen-year terms on the Court. The resulting de facto term limit would rectify the structural problems caused by life tenure and would strengthen an institution facing an unprecedented legitimacy crisis in the wake of three exceptionally controversial Supreme Court appointments by President Trump. This paper contains three parts. In Part I, I provide an overview of the institutional problems associated with life tenure, including the randomness of Supreme Court vacancies, the increased length of time the Justices spend on the bench, and the politicization of the Court. Part II introduces the system of eighteen-year staggered term-limits that is supported by a wide range of scholars and other Court observers. I then respond to several criticisms of this term-limit reform, ultimately agreeing with the critique that implementing term limits via constitutional amendment is highly unlikely and implementing them via statute is likely unconstitutional. This conclusion leads me, in Part III, to argue that the most plausible way to establish Supreme Court term limits is through changed norms. Much as George Washington’s decision to not seek a third term as President led to a de facto Presidential term limit, I contend that Chief Justice Roberts is uniquely positioned to establish a new norm of serving eighteen-year terms on the Court. I then detail how Chief Justice Roberts’ well-timed resignation could lead to this de facto term limit system.

Designing Supreme Court Term Limits

Since the Founding, Supreme Court justices have enjoyed life tenure. This helps insulate the justices from political pressures, but it also results in unpredictable deaths and strategic retirements determining the timing of Court vacancies. In order to regularize the appointment process, a number of academics and policymakers have put forward detailed term limits proposals. However, many of these proposals have been silent on many key design decisions and there has been almost no empirical work assessing the impact that term limits would have on the composition of the Supreme Court. This Article provides a framework for designing a complete term limits proposal and develops an empirical strategy to assess the effects of instituting term limits. The framework we introduce outlines the key design features that any term limits proposal must make, including frequently overlooked decisions like what the default would be if there is Senate inaction on a president’s nominee. The empirical strategy we develop uses simulations to assess how term limits proposals would have shaped the Court if they had been in place over the last 80 years of American history. These simulations enable comparative assessments of term limit proposals relative to each other and to the historical status quo of life tenure. Using these simulations, we are able to isolate the design features of existing proposals that produce significant differences in the composition of the Supreme Court. For instance, proposals that commence appointing term-limited justices immediately could complete the transition in just 16 years, but proposals that wait until after the sitting justices leave the Court to appoint term limited justices would take an average of 52 years to complete the transition. Our results also reveal that term limits are likely to produce dramatic changes in the ideological composition of the Court. Most significantly, the Supreme Court had extreme ideological imbalance for 60 percent of the time since President Franklin Roosevelt’s effort to pack the Court, but any of the major term limit proposals would have reduced the amount of time with extreme imbalance by almost half.

Retiring Life Tenure: On Term Limits and Regular Appointments at the Supreme Court

The notorious gridlock between Congress and the Executive—and often between houses of Congress—this century has created a power vacuum the U.S. Supreme Court has been more than happy to fill. On race, guns, healthcare, marriage, campaign finance, school choice, religious liberty, abortion, voting, and immigration, lawmakers sit paralyzed as the unaccountable third branch decides for 330 million of us what the law is on each of these issues. What’s worse, the Justices of the Supreme Court are serving longer on average than ever before, nearly twice as long as they served just two generations ago. In short, the politicians in robes wield too much power, and they wield that power for too long. Limiting a Justice’s tenure on the High Court to a more reasonable length would address these problems head on. Future Justices serving a nonrenewable eighteen-year term, as the most common proposal dictates, would decrease the amount of power that any one Justice would hold over American jurisprudence. It would lower the political consequences of any one judicial confirmation battle by ensuring that another chance at a nomination would soon come. And it would ensure that no particular nominee would hold his or her seat for decades, with no end in sight. The current system incentivizes several objectionable practices—ignoring economists’ calls for government stimulus in favor of a confirmation; exposing one’s fellow senators to a deadly disease; finding a nominee as young as possible who could serve forty or fifty years—that we can’t stop right now. But these do make it clear that the system of appointing Justices is in dire need of fixing.

Heads of State and Other Government Officials Before the International Criminal Court: The Uneasy Revolution Continues

This essay takes up the current debate about the relationship between Article 27 of the Rome Statute of the International Criminal Court and Article 98 of the Statute concerning the immunity of sitting Heads of State from investigation or prosecution before the Court and the duty of States to cooperate with the Court as regards their arrest and surrender. The essay traces the history of Article 27 and its incorporation into the Statute and observes that it represents a rule of customary international law resting upon the adoption of the Nuremberg Principles after World War II, and reiterated in the Statutes of the ad hoc international criminal tribunals, that was included in the Rome Statute during its negotiation without comment or controversy. Now that the Court has become operational, current efforts to limit Article 27’s application using Article 98 of the Statute – first advanced by the United States and subsequently by member states of the African Union – represent an effort to change that custom by once more cloaking Heads of State with immunity, the same rule that protected Kaiser Wilhelm one hundred years ago. While States could arguably change customary international law by again proposing that high-ranking individuals are immune from prosecution before international courts and tribunals, and presumably amending the Rome Statute to so provide, the essay argues that the Court’s judges do not have this power. It also suggests that the jus cogens status of the norms embedded in the ICC Statute, including the individual criminal responsibility of high-ranking individuals, indicates that an effort to change this norm, even by States, could violate other peremptory norms of international criminal law. Moreover, given the long tenure of many of the leaders arguing in favor of this new rule, and the current tendencies of today’s heads of state to insist upon life tenure, such a change, even if lawful, would be tantamount to a grant of permanent immunity for the individuals thus protected. The essay thus proposes a return to “first principles” of international criminal law, which permit the investigation, arrest, surrender and trial of high-ranking government leaders to international courts, even during their tenure in office, assuming those courts and tribunals are exercising jurisdiction properly.

America's Aristocracy

In Taking the Constitution Away from the Courts,' Professor Mark Tushnet takes on America's favorite branch. Perhaps the brightest star in a movement that seems to have fizzled out,2 Tushnet is particularly well suited to play the lone child who bares to the bewildered populace the truth about their judicial emperors. After all, the Left has never been reluctant to speak (or shout) the truth to power. Tushnet requests that we reorient ourselves toward a constitutional law, in which the people and their elected representatives vindicate the Constitution and the courts have absolutely no enforcement role. To relegate the judiciary to the status of constitutional ciphers, Tushnet advocates a constitutional amendment that would provide that [t]he provisions of this Constitution shall not be cognizable by any court. With respect to his thin constitutional project, Tushnet would replace our already compact and vague Constitution with something even more nebulous and unhelpful. We may be attached to justice, the general welfare, and liberty, but that does not mean that we share many meaningful commitments. A KKK member might claim that justice entails the eradication of all racial minorities. A Communist Party cadre would find the general welfare served by the abolition of private property. As should be obvious, Tushnet's thin Constitution can be made to mean absolutely anything in practice, which signifies that it actually constitutes nothing. Such an anorexic, yet cavernous, document would neither enjoy any obvious advantages nor attract any genuine allegiance. His populist constitutional project fares much better but still falls short. Tushnet does not carry his burden of persuasion when he argues that the courts should play absolutely no role in enforcing the Constitution. His strongest argument rests on his claim that the courts are largely inconsequential because they usually follow the election returns. But if the judiciary does not really matter, he must explain why we should bother abolishing judicial review. Indeed, if the judiciary follows the election returns, perhaps we already have an unintended populist constitutional law regime. Paradoxically, his arguments might dispel the misgivings that certain quarters have about judicial review. Notwithstanding all this, Tushnet's radicalism has highlighted a fatal flaw in a system purportedly based on the principle that the people rule: America has an elitist constitutional law in which only the judgments, opinions, and perspectives of the courts matter. While we could make our constitutional law more responsive to the people by eliminating judicial review, we would thereby eliminate the benefits that flow from having an institution that specializes in interpretation and from having an independent check on the other branches. Perhaps the better means of ushering in a populist constitutional law would be to abolish life tenure for federal judges. If we eliminated life tenure, judges would no longer seem infallible and we would no longer place them on a pedestal. Nor would they have complete freedom to pursue their own agendas. Instead, we could hold them accountable for their biases, failings, and errors. Most importantly, eliminating life tenure would serve as a concrete sign that judges, like all public servants, serve at the pleasure of the people.

Adjudication Outside Article III

Article III requires federal courts that exercise federal jurisdiction to be given life tenure and undiminished compensation, limiting Congress’s ability to influence the judiciary. But from the beginning, we have accepted certain forms of adjudication outside Article III – state courts, most obviously, but also territorial courts, administrative adjudication of public rights, and military tribunals. The question is why. This Article attempts to provide an answer. It argues that it is a mistake to focus on the act of adjudication itself; adversary presentation about the application of law to fact is simply a procedure, and not a procedure uniquely limited to Article III courts. Instead, the constitutional question is one of government power. What kind of power has the tribunal been vested with, and what it is trying to do with that power? With this framework in view, the structure and scope of non-Article-III adjudication becomes clearer. Some courts exercise the judicial power of some other government. This is why territorial courts and state courts are constitutional. Some bodies exercise executive power, subject to the constraints reflected by the Due Process Clause. This is why administrative adjudication of public rights and military trials are constitutional. Some exercise no governmental power, and can proceed only as an adjunct to another entity, or on the basis of consent. This is the only basis on which magistrate judges and bankruptcy judges can proceed and may render some of their current behavior unconstitutional.

The District of Columbia and Article III

Today, it is black-letter law that Congress may create non-Article III courts in the District of Columbia and staff them with judges who lack salary protection and life tenure. Forty-five years ago, the Supreme Court upheld the District’s non-Article III court system. And since that decision, judges and scholars alike have accepted that the District is an exception to Article III. This Article challenges that consensus. It shows that, as a historical matter, Article III’s judicial protections were long believed to apply to the District. And it demonstrates that the various functional justifications for non-Article III adjudication do not apply to courts in the capital. In short, this Article demonstrates that the current D.C. court system likely violates Article III. This conclusion should be significant in its own right, since the right to an Article III judge has long been viewed as an essential constitu-tional safeguard. Indeed, the modern history of the D.C. court sys- tem reveals the troubling influence of crime and race on Congress’s decision to create a non-Article III court system in the capital. But the historical research presented in this Article also has broader implica-tions outside the seat of government. Most directly, it suggests a new limit on Congress’s power to create non-Article III tribunals on public lands.

How Much Democracy is too Much Democracy?

Despite their widespread use, many rightfully question the prudence of using popular elections to fill state courts. A key difference between federal and state courts is that while federal judges are nominated by the president and confirmed by the Senate, the majority of jurists at the state level are elected. The reason federal judges, at least judges on the Article III courts, are made by executive selection is the same reason that Supreme Court justices are given life tenure: to insulate them from the whims of public opinion. In this passage, Hamilton articulates the fundamental paradox of democracy, a question that genuine republics have always grappled with: how can we control for the “tyranny of the majority?” In other words, how can we entrust people with the power to govern themselves but also prevent them from stripping away the rights of minority groups or from posing a danger to others?

Shadow Judges: Uncovering Judicial Power Delegation in the District Courts

Prisoners bring over twenty percent of the civil cases filed in federal district courts. This litigation implicates civil rights and habeas corpus. Prisoners’ civil litigation can protect individual liberties and even require that an incarcerated person be set free. Because most prisoners (around 93%) proceed pro se in their federal civil litigation, they are already at a disadvantage. In addition to being unrepresented, prisoner plaintiffs suffer in other ways. Local rules, general orders, and even district courts’ job postings suggest that when a case is brought by a pro se prisoner, judicial tasks that must be preformed in the case, from administration to adjudication, are delegated to non-judicial pro se staff. As a result, an incarcerated plaintiff’s case, brought in the same district court as a non-incarcerated plaintiff’s, may be decided by a court employee who works as part of the court’s “pro se staff,” while a non-incarcerated plaintiff’s case will be decided by a magistrate or district court judge. The Supreme Court’s recent Wellness International decision drew attention to delegation of Article III claims to non-Article III judges in the bankruptcy realm. There, the Court rigorously weighed the impact of the structural error caused by delegation to judges who do not enjoy fixed salaries or life tenure. But delegation of the judicial power in the prisoner litigation context is still hiding in plain sight. This article is the first to consider the scope of the delegation to pro se staff, and the separation of powers concerns caused by delegation of the judicial power to pro se staff. It argues that local procedure has enabled the delegation, and that it has gone too far. Local procedure crafts rules for prisoner litigation that conflict with federal law. When federal courts overreach in this manner, their rulemaking exceeds the limited rulemaking authority Congress has delegated to the judiciary. Moreover, the local procedure violates federal policy, which generally disfavors allowing non-judicial actors to perform judicial tasks. The article concludes with recommendations about how to solve the delegation problem. The local procedure and the pro se staff it creates could be eliminated. Congress alone would be left with the responsibility to create additional procedure for prisoner litigation, or to refrain from doing so. A more moderate approach would publicize the identity of pro se staff as well as the nature of the work the staff undertakes. At a minimum, pro se staff should be brought out of the shadows.

Do Judges Respond to Incentives? The Effects of the Six Month List

A little known mechanism instituted to improve judicial accountability and speed up the work of the federal judiciary has led to unintended consequences, many of them unfortunate. Federal district court judges are subject to a requirement known as the Six Month List. By law, every judge’s backlog (cases older than three years and motions pending more than six months) is made public twice a year. Since judges have life tenure and fixed salaries, a mere reporting requirement might not influence their behavior. But it does. Using the complete record of all federal civil cases between 1980 and 2017 and a hand-coded sample of summary judgment resolutions, we demonstrate that the List leads judges to close substantially more cases and decide more motions in the week immediately before it is compiled. While average motion processing time is shortened by 10 to 40 days, duration is actually lengthened for some motions (those for which the deadline is least pressing). Moreover, we find suggestive evidence that the List has substantive consequences: in an effort to comply with the List, judges may be making more errors. Theory suggests that giving judges an incentive for faster case processing is probably a mistake. But since this incentive is Congressionally mandated, we offer an alternative mechanism that will limit distortions until Congress acts to relieve the federal courts of this unnecessary burden.

Who Killed Habeas Corpus?

This article discusses the recent history of the writ of habeas corpus, once known as the Great Writ of Liberty, and concludes that the end result has been tragic. Because of unwise decisions made by all three branches of government, Congress, the President, and the Supreme Court, the writ has largely been destroyed as an effective remedy for individuals who are imprisoned as a result of a violation of their federal constitutional rights by a state court. The article notes that under Chief Justices Burger and Rehnquist the Supreme Court established a number of restrictions on the right of state prisoners to obtain federal habeas review. Then, in 1996, a Republican Congress passed an extremely repressive bill entitled the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) that imposed additional restrictions on the Great Writ. Particularly objectionable are provisions requiring federal courts to defer to erroneous but reasonable state court interpretations of the Constitution and barring federal courts from relying on any authority other than clearly established Supreme Court precedent. Sadly, over the objections of habeas scholars, civil libertarians, and his own counsel, President Clinton signed the bill into law. Since then, the Supreme Court has consistently interpreted the law so as to make it even more harmful to prisoners seeking to overturn unconstitutionally obtained state convictions. The article contends that the loss of habeas corpus is profound because the writ is urgently needed. This is so because, as state judicial elections have become increasingly contested, increasingly partisan, and increasingly well-financed, it is increasingly difficult for state court judges, who unlike federal judges do not have life tenure, to protect criminal defendants’ constitutional rights. As a result, too many people spend too many years in prison as a result of convictions involving violations of their constitutional rights.

Preferences are Public Rights

In the wake of the Supreme Court’s decision in Stern v. Marshall, there is widespread uncertainty as to what other proceedings may constitutionally fall within a bankruptcy court’s core jurisdiction. Supreme Court jurisprudence has been cryptic regarding the constitutional limitations of non-Article III courts, but the Court has identified a rights to the general rule that the judicial power must be exercised only by judges with life tenure and salary protection. This public rights exception has not yet been explicitly extended to a bankruptcy proceeding, but the reasoning of the Court strongly suggests that a trustee’s motion to avoid preferences would fall under the public rights exception, as a proceeding stemming exclusively from bankruptcy law and necessary to resolve claims against the estate. Accordingly, and contrary to what most scholars have suggested, preference proceedings fit comfortably within the jurisdiction of bankruptcy courts, even after the Supreme Court’s ruling in Stern.

What Should We Do With Bankruptcy Judges?: A Strategic Approach

The Supreme Court’s ruling in Stern v. Marshall has signaled a need to alter the bankruptcy courts' jurisdictional structure. In Stern, the Supreme Court ruled that bankruptcy judges, who lack the life tenure and salary protection of Article III, cannot issue final rulings in bankruptcy proceedings previously believed to be within their core jurisdiction. In response to the constitutional challenge raised by Stern, and in recognition that bankruptcy court’s jurisdictional limits represent a long-standing problem, many argue for a long-term solution: the restructuring of the system to create specialized Article III bankruptcy courts. This paper evaluates this proposal in light of classic principles of system restructuring, namely, that any proposed restructure should stem from the underlying goals or strategy for that system. The creation of a specialized Article III bankruptcy court is consistent with the view of bankruptcy as a method of distribution, but not with bankruptcy as a procedural mechanism to deal with collective default. In recognition of this tension, the paper promotes an alternative solution to the Stern problem, one that harmonizes other strategic approaches and promotes uniformity in bankruptcy. This solution would replace bankruptcy courts with an administrative agency subject to the review of non-specialized district courts.

Models of Judicial Tenure: Reconsidering Life Limits, Age Limits and Term Limits for Judges

Tenure is an important facet of judicial independence and a key principle underpinning the rule of law, yet its protection varies markedly from country to country. This article examines the historical development and empirical experience of three pre-eminent appellate courts — the Supreme Court of the United States, the High Court of Australia and the Constitutional Court of South Africa — as examples of prevalent models of tenure, namely, life tenure, age limits and term limits. Dissatisfaction with tenure arrangements in each jurisdiction has been impelled by increasing human longevity, growing awareness of incapacities that accompany ageing, and changing attitudes to age discrimination. These developments have led to constitutional and legislative reforms to ameliorate the problems that inhere in different models of tenure. However, the choice between models, and between key parameters within each model, reflect complex policy preferences. The article concludes that hybrid arrangements that incorporate age limits and term limits — illustrated by the Constitutional Court of South Africa — provide a suitable compromise between competing policy objectives.

Source Cues and Public Support for the Supreme Court

It is well known that the public often relies on cues or heuristics when forming opinions. At the same time, leading theories of opinion formation about the Supreme Court see such support as relatively fixed. Using a series of survey experiments, we find source cues significantly influence the public’s support for the Court, including the extent to which individuals believe the Court should be independent from the elected branches. Specifically, we find partisan source cues play a significant role in shaping public opinion regarding life tenure for the justices and the extent to which the Court should have the final say in constitutional matters—individuals are less likely to support court-curbing measures when informed that elites from the opposite party have proposed them than when such measures are endorsed by either a neutral source or members of their own party. We also find a strong connection between specific support for particular decisions and the degree to which people believe the Court should be free from external influence, as individuals are more likely to say the justices should be influenced by demonstrators when the side they favor is the one doing the demonstrating. These results have important implications for understanding the extent to which politicians can shape the public’s overall support for the Court, as well as for assessing the degree to which the public views the Court as a “political” institution.

The Real Constitutional Problem with State Judicial Selection: Due Process Judicial Retention and the Dangers of Popular Constitutionalism

In Caperton v. A.T. Massey Coal Co., decided in 2009, the Supreme Court held for the first time that conduct related to a judicial election campaign violated a litigant’s right to procedural due process because the opposing litigant had contributed an inordinate amount of money to the campaign of one of the justices ruling on the case. The due process danger recognized in Caperton rests on a fear of retrospective gratitude — i.e., the fear that the Justice would decide his contributor’s case differently because he was grateful for the litigant’s generous support. The Court’s focus on retrospective gratitude is simultaneously overinclusive and underinclusive. It is overinclusive because it proves far too much: All judges — even federal judges protected by Article III — owe their selection to someone, whether it is a president or a senator, and that has never been deemed to threaten their independence. Yet the due process rule that derives from the decision is also underinclusive, because it makes no reference to the real due process danger of state court elections. This Article argues that the key constitutional problem with the selection of state court judges is for the most part not the initial selection process, but rather the use of majoritarian processes (either retention elections or gubernatorial appointment) to determine judicial retention. It is in this context that all of the constitutional concerns about judicial independence converge, because it is in this context that the very real threat to decisional independence arises. Judicial fears that deciding a particular case in a particular manner could threaten her continued employment could easily skew the decision from a neutral decision grounded in the judge’s independent assessment of the facts and law. The Article argues that life tenure or at the very least some form of formal term limit is required by the Due Process Clause to assure constitutionally required judicial independence. As radical as this recommendation may be, we argue that there is no other way to assure the appearance or reality of fairness which lie at the core of the due process guarantee.

Supreme myths: why the Supreme Court is not a court and its justices are not judges

This book explores some of the most glaring misunderstandings about the U.S. Supreme Court-and makes strong case for why our Supreme Court Justices should not be entrusted with decisions that affect every American citizen. Supreme Myths: Why the Supreme Court is Not Court and its Justices are Not Judges presents detailed discussion of the Court's most important and controversial constitutional cases that demonstrates why it doesn't justify being labeled a court of Eric Segall, professor of law at Georgia State University College of Law for two decades, explains why this third branch of the national government is an institution that makes important judgments about fundamental questions based on the Justices' ideological preferences, not the law. A complete understanding of the true nature of the Court's decision-making process is necessary, he argues, before an intelligent debate over who should serve on the Court-and how they should resolve cases-can be held. Addressing front-page areas of constitutional law such as health care, abortion, affirmative action, gun control, and freedom of religion, this book offers frank description of how the Supreme Court truly operates, critique of life tenure of its Justices, and set of proposals aimed at making the Court function more transparently to further the goals of our representative democracy.

Formalism without a Foundation: Stern v Marshall

In Stern v. Marshall (2011), the Supreme Court held that it violated Article III of the Constitution for a bankruptcy court to issue a final judgment as to a state law counterclaim. Although Chief Justice Roberts’ majority opinion is predicated on the need to have judges with life tenure to ensure judicial independence, it is difficult to see why this should matter for state law claims. Stern v. Marshall can be understood only as an exercise in formalism, rather than a functional approach to determining what can be decided by non-Article III judges. The formalistic reasoning of the Court is unsatisfying, especially in an area where the Court throughout American history has allowed non-Article III courts for functional reasons. Stern v. Marshall, if followed by the Court, could have enormous implications for the authority of the bankruptcy courts and more generally for federal jurisdiction.