Thomas P. Schmidt

Debate about the virtues and vices of “judicial minimalism” is evergreen. But as is often the case in public law, that debate so far has centered on the Supreme Court. Minimalism arose and has been defended as a theory about how Justices should judge. This Article considers judicial minimalism as an approach for lower courts, which have become conspicuous and powerful actors on the public law scene. It begins by offering a framework that disentangles the three basic meanings of the term “judicial minimalism”: decisional minimalism, which counsels judges to decide cases on narrow and shallow grounds; prudential minimalism, which counsels judges to avail themselves of various techniques of not deciding cases (the so-called “passive virtues”) on grounds of prudence; and Thayerian minimalism, which counsels judges to refrain from invalidating the actions of the political branches except in cases of clear illegality. This Article then argues that several institutional features of lower courts make judicial minimalism in most of its forms a particularly compelling ideal for lower court judges. Further, attending to the differences between the lower courts and the Supreme Court reveals that minimalism is in tension with the institutional logic of the Supreme Court. In all, this Article aims both to clarify the concept of minimalism and to place it in its proper institutional home. After making the case for lower court minimalism, this Article proposes some strategies for realizing it: first, developing a concept of judicial role fidelity that is tailored to the institutional realities of lower courts, and second, reforming case-assignment rules, nationwide injunctions, and the size of the federal bench to help channel lower courts toward more minimalist outcomes.

Introduction

The lower federal courts are active and conspicuous these days. “[I]nferior” Article III courts (as the Constitution calls them¹ 1.U.S. Const. art. III, § 1.Show More) have “now assumed enormous legal, political, and cultural significance.”² 2.Henry P. Monaghan, Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has To Teach Us, 69 Duke L.J. 1, 32 (2019). The present salience of lower federal courts may not be historically unprecedented. One thinks, for instance, of the lower courts as a focal point in the fight over federalism in the early Republic, Alison L. LaCroix, The Ideological Origins of American Federalism 179 (2010); of lower court enforcement of the fugitive slave laws, Robert Cover, Justice Accused: Antislavery and the Judicial Process 159–74 (1975); or of lower courts issuing injunctions against organized labor in the Progressive Era, William E. Forbath, The Shaping of the American Labor Movement, 102 Harv. L. Rev. 1109, 1148–65 (1989).Show More They have repeatedly reviewed and halted major initiatives of the Trump and Biden Administrations,³ 3.SeeBert I. Huang, Judicial Credibility, 61 Wm. & Mary L. Rev. 1053, 1060 (2020) (noting that the Trump era was “a political moment when numerous government actions [were] being blocked by the lower federal courts”); Fred Barbash, Deanna Paul, Brittany Renee Mayes & Danielle Rindler, Federal Courts Have Ruled Against Trump Administration Policies at Least 70 Times, Wash. Post (Apr. 26, 2019), https://www.washingtonpost.com/graphi​cs/2019/politic​s/trump-overruled/ [https://perma.cc/MR8E-WMTX] (“All administrations lose cases, but experts cannot recall so many losses in such a short time.”); Ian Millhiser, Just How Much Is Trump’s Judiciary Sabotaging the Biden Presidency?, Vox (Dec. 27, 2021) (on file with editors), https://www.​vox.com/22820378/trump-biden-supreme-court-judiciary-sabotage.Show More often generating front-page headlines and issuing decisive nationwide relief that reshapes American life.⁴ 4.E.g., Michael D. Shear, Stacy Cowley & Alan Rappeport, Biden’s Efforts at Race Equity Run into Snags, N.Y. Times, June 27, 2021, at A1; Alexander Burns, Federal Judge Blocks New Ban on Travel to U.S., N.Y. Times, Mar. 16, 2017, at A1. I represented the plaintiffs in the second of these cases, culminating in Trump v. Hawaii, 138 S. Ct. 2392 (2018). The views expressed in this Article are my own.Show More In the process, they have decided—at least provisionally—major questions roiling the nation, involving everything from abortion to race, religious freedom, public health, immigration, and presidential power. It is an opportune time to reflect on the proper role of a lower court judge in a public law case.

One of the most prominent theories addressing that general issue—the proper role of a judge—goes by the label “judicial minimalism.” Minimalism seems to be everywhere: it is deployed in court opinions,⁵ 5.See, e.g.,Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1881 (2021) (ruling on narrow, case-specific grounds); id. at 1883 (Barrett, J., concurring) (defending this narrow disposition); id. at 1887–88 (Alito, J., concurring in the judgment) (criticizing the majority’s narrow disposition). I represented the City of Philadelphia in the Supreme Court in Fulton. Again, the positions taken here are mine.Show More theorized in the legal academy,⁶ 6.See infraPart I.Show More and debated in the commentariat.⁷ 7.E.g., David Cole, Surprising Consensus at the Supreme Court, N.Y. Rev. of Books (July 7, 2021), https://www.nybooks.com/articles/2021/08/19/surprising-consensus-at-the-supreme​-court/ [https://perma.cc/2VZH-9GDU] (discussing “minimalism” in the Supreme Court’s recently concluded Term); Jay Michaelson, Your Father’s Supreme Court, Intelligencer, N.Y. Mag. (July 3, 2021) (on file with editors), https://nymag.com/intelligencer/2021/07/your-fathers-supreme-court.ht​ml (same).Show More It is a “dominant school of thought” today, with deep roots in our legal culture.⁸ 8.Jonathan T. Molot, Principled Minimalism: Restriking the Balance Between Judicial Minimalism and Neutral Principles, 90 Va. L. Rev. 1753, 1776 (2004); Neal Devins, Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government, 69 Vand. L. Rev. 935, 938–39 (2016) (“Minimalism remains vibrant and is almost certainly the most important contemporary constitutional theory that formally takes into account the dynamic between the Supreme Court and elected government.”).Show More Eminences like James Bradley Thayer, Oliver Wendell Holmes, Alexander Bickel, Ruth Bader Ginsburg, and Cass Sunstein, to name only a few, have embraced variants of minimalism.⁹ 9.See infraPart I.Show More

To date, however, debates about lower court judging and debates about minimalism have rarely intersected. The bulging literature on judicial minimalism has focused on the Supreme Court of the United States. Minimalism developed and has been offered as a philosophy for Justices, not judges. As far as I am aware, no one has systematically considered whether judicial minimalism makes sense as a model for lower court judges, who handle the vast bulk of Article III adjudication.¹⁰ 10.See Stephen G. Breyer, Reflections on the Role of Appellate Courts: A View from the Supreme Court, 8 J. App. Prac. & Process 91, 93 (2006) (noting that “the eighty cases that the Supreme Court hears annually represent the small tip of a vast iceberg” and that “most determinative legal interpretations occur instead in the federal courts of appeals, in the state supreme courts, and in state appellate courts”); Sanford Levinson, On Positivism and Potted Plants: Inferior Judges and the Task of Constitutional Interpretation, 25 Conn. L. Rev. 843, 844 (1993) (“The behavior of the roughly 100 circuit judges and 500 district judges is, for most citizens most of the time, far more likely to count as ‘the law’ than the pronouncements of the nine denizens of the Supreme Court . . . .”).Show More

This Article takes up that question and answers yes: the institutional situation of lower courts makes judicial minimalism in most of its forms a particularly compelling model for a lower court judge. Substantiating that claim requires a few steps. The first is to define what judicial minimalism is and unpack why it has been defended, and so this Article begins by offering a framework that disentangles the three core meanings of judicial minimalism. Next, this Article walks through the institutional features of lower courts that distinguish them from the Supreme Court and explores how those features bear upon the judicial role. I argue that, taken together, those features counsel in favor of an approach to judging that coincides closely with the program of judicial minimalism. The call for institutional “situation-sense” that motivates this Article yields more than just a prescription for lower courts. Attending to the full context of the judicial system calls into question judicial minimalism as an ideal for the Supreme Court—the institution it was designed to address. Finally, the Article closes with some proposed reforms to cultivate a measure of minimalism in the lower courts. In a word, I aim to give the concept of judicial minimalism more analytical precision and to place it in its proper institutional home.

Such a project seems timely. As noted, lower courts have become highly visible and powerful actors on the public law scene.¹¹ 11.See supranote 2.Show More They are, as a result, starting more and more to attract the notice of theorists and commentators.¹² 12.See, e.g., Perry Bacon Jr., The Most Dangerous Conservative Judges Aren’t on the Supreme Court, Wash. Post (Dec. 21, 2021), https://www.washingtonpost.com/opinions/20​21/​12/21/most-dangerous-conservative-judges-arent-supreme-court/ [https://perma.cc/J4KJ-VZ​TH].Show More This attention is welcome. The traditional (if often implicit) focus of public law scholarship has been the Supreme Court, and the lower courts, as a result, were often overlooked.¹³ 13.SeeEdward A. Purcell, Jr., Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts, 24 Law & Soc. Inquiry 679, 681 (1999) (“Our excessive focus on the Supreme Court . . . has over the years minimized and obscured large areas of American experience . . . .”);Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 4 (1994) (“[W]hile numerous scholars have comprehensively explored the nature and function of judicial law declaration from the perspective of the Supreme Court or a hypothetical single-judge judiciary, few have considered the view from below and the interaction between subordinacy and function.”).Show More In recent years, though, scholars have paid increasing heed to the variety of institutions that consider and decide questions of public law.¹⁴ 14.SeeCass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 Mich. L. Rev. 885, 920–22 (2003). Of course, at a high level of generality, legal scholarship had been preoccupied with institutional questions since at least the legal process school, seeEdward L. Rubin, The New Legal Process, The Synthesis of Discourse, and the Microanalysis of Institutions, 109 Harv. L. Rev. 1393, 1396 (1996), but Professors Sunstein and Vermeule called for a more rigorously empirical and less stylized approach to institutional analysis. Sunstein & Vermeule, supra, at 897–913.Show More The core contention of this “institutional turn” is that normative theory about legal decision making ought to be bespoke, tailored to the manifold institutional settings in which questions of public law are resolved.¹⁵ 15.Sunstein & Vermeule, supra note 14, at 886.Show More The study of lower courts has been a beneficiary of this institutional turn: recent scholarship has examined originalism,¹⁶ 16.See Ryan C. Williams, Lower Court Originalism, 45 Harv. J.L. & Pub. Pol’y 257 (2022).Show More popular constitutionalism,¹⁷ 17.Katie Eyer, Lower Court Popular Constitutionalism, 123 Yale L.J. Online 197, 215–18 (2013).Show More statutory interpretation,¹⁸ 18.James J. Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 Wm. & Mary L. Rev. 681, 686 (2017); Aaron-Andrew P. Bruhl, Hierarchy and Heterogeneity: How to Read a Statute in a Lower Court, 97 Cornell L. Rev.433, 470–84 (2012).Show More stare decisis,¹⁹ 19.Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317, 318 (2005).Show More foreign law,²⁰ 20.Roger P. Alford, Lower Courts and Constitutional Comparativism, 77 Fordham L. Rev. 647, 656–64 (2008).Show More Chevron deference,²¹ 21.Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777, 799–820 (2017) (arguing that the “major questions” exception to Chevron deference should not be applied in lower courts).Show More and other topics in the context of lower federal courts,²² 22.Z. Payvand Ahdout, Enforcement Lawmaking and Judicial Review, 135 Harv. L. Rev. 937, 960–73 (2022) (evaluating lower courts’ use of case management techniques in recent separation-of-powers suits); Richard M. Re, Narrowing Supreme Court Precedent from Below, 104 Geo. L.J. 921, 925 (2016) (arguing that lower courts can legitimately “narrow” Supreme Court precedent in certain circumstances); Doni Gewirtzman, Lower Court Constitutionalism: Circuit Court Discretion in a Complex Adaptive System, 61 Am. U. L. Rev. 457, 506–09 (2012) (viewing lower court decision making through the lens of complexity theory). For a critique of the federal courts of appeals as they currently operate that blends historical, empirical, and normative strands, see generally William M. Richman & William L. Reynolds, Injustice on Appeal: The United States Courts of Appeals in Crisis (2013).Show More to say nothing of state courts.²³ 23.See David E. Pozen, Judicial Elections as Popular Constitutionalism, 110 Colum. L. Rev. 2047, 2064–86 (2011) (exploring how judicial elections for state courts relate to theories of popular constitutionalism); Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833, 1842–76 (2001) (offering a comprehensive survey of justiciability doctrines in state courts); Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 166 (1984) (exploring the relationship between constitutional theory and “the world of the state courts”).Show More This scholarship has usefully foregrounded the judicial bodies that decide many multiples more cases than the ever-vanishing sliver that makes its way to the Supreme Court.²⁴ 24.In the 2020 Term, the Supreme Court issued only fifty-seven decisions in argued cases (and sixty-seven decisions including summary reversals and orders on the shadow docket). Stat Pack for the Supreme Court’s 2020–21 Term, SCOTUSBlog, https://www.scotusblog.co​m/statistics [https://perma.cc/SUY9-X5RD] (last visited May 20, 2022). The federal courts of appeals decide nearly fifty thousand cases per year. Admin. Off. of the U.S. Cts., Table B: U.S. Courts of Appeals––Cases Commenced, Terminated, and Pending During the 12-Month Periods Ending September 30, 2019 and 2020, at 1 (Sept. 30, 2020), https://www.uscourts.gov/sites​/default/files/data_tables/jb_b_0930.2020.pdf [https://perma.cc/U7M2-ESJB].Show More But the void regarding judicial minimalism persists. And, in some ways, minimalism is even more fundamental than these other questions because it goes to the basic attitude a judge should have toward the task of adjudication and so is interwoven with all the first-order interpretive debates just noted.²⁵ 25.See infra notes 98–103 and accompanying text.Show More

Judicial minimalism also relates to larger public controversies unfolding now about whether the federal judiciary should be reorganized or limited. Many feel that the judiciary is out of step with the political and legal mainstream.²⁶ 26.SeeJonathan S. Gould & David E. Pozen, Structural Biases in Structural Constitutional Law, 97 N.Y.U. L. Rev. (manuscript at 20) (forthcoming 2022), https://papers.ss​rn.com/sol3/papers.cfm?abstract_id=3797051 [https://perma.cc/56BE-6CKF] (noting the pro-Republican structural biases in our method for selecting judges); Joshua P. Zoffer & David Singh Grewal, The Counter-Majoritarian Difficulty of a Minoritarian Judiciary, 11 Calif. L. Rev. Online 437, 454–62 (2020) (documenting the rise of federal judges appointed by Presidents and Senators representing a minority of the populace and the resulting legitimacy crisis in the federal judiciary).Show More Prominent academics have called for major court reforms.²⁷ 27.See generally Presidential Comm’n on the Sup. Ct. of the U.S., Final Report(2021), https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.​pdf [https://perma.cc/K69J-T2C8] (summarizing and assessing potential Supreme Court reforms).Show More President Biden appointed a commission to explore, among other things, changing the size of the Supreme Court—a proposal that would have been nearly unthinkable not long ago.²⁸ 28.Michael D. Shear & Carl Hulse, Biden Orders Panel’s Review on Expanding Supreme Court, N.Y. Times, Apr. 10, 2021, at A13; cf. David E. Pozen, Self-Help and the Separation of Powers, 124 Yale L.J. 2, 34 (2014) (“‘Court packing’ is especially out of bounds.”).Show More Other scholars have objected to the increasingly prevalent “nationwide” injunction.²⁹ 29.E.g., Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 457–65 (2017).Show More Still others have criticized the federal courts for insulating certain forms of structural inequality in American society and have called for a reorientation of public law scholarship toward “institutional reform and democratic action.”³⁰ 30.Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynksi & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1807, 1829 (2020).Show More Many of these proposals borrow overtly or implicitly from theories of judicial minimalism—for instance, institutionalizing a norm of deference to the political branches through supermajority voting requirements or limiting courts’ jurisdiction and remedial powers.³¹ 31.See, e.g., Ryan D. Doerfler & Samuel Moyn, Democratizing the Supreme Court, 109 Calif. L. Rev. 1703, 1727 (2021) (proposing that a supermajority of Justices be required to strike down federal legislation); Howard M. Wasserman, Congress and Universal Injunctions, 2021 Cardozo L. Rev. De Novo 187, 192–201 (discussing various proposals to reform nationwide or “universal” injunctions in Congress); cf. K. Sabeel Rahman, Constitutional Law 101: A Primer for the Law and Political Economy Blog, LPE Project (Nov. 23, 2018), https://lpeproject.org/blog/constitutional-law-101-a-primer-for-the-law-and-political-econom​y-blog-3/ [https://perma.cc/UK7N-BSVU] (“[V]iewed from a political economic lens, the battle for inclusion may sometimes involve judicial intervention, and other times involve judicial minimalism.”).Show More More broadly, these controversies about the judicial power confirm the growing need for public law theorists to grapple with lower courts, who define, as a practical matter, the meaning of federal law for so many people.³² 32.See supranotes 10, 24. Indeed, it is even possible that lower court reform could achieve some of the same ends as “packing” the Supreme Court. See McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 S. Cal. L. Rev. 1631, 1634 (1995) (“[U]nder the appropriate circumstances, expansion of the lower judiciary can have the same effect on judicial doctrine as packing the Supreme Court.”).Show More

This Article has three Parts. Judicial minimalism is a woolly concept that is often invoked to mean different and even contradictory things. Part I offers a novel typology of judicial minimalisms to set the analytical table for the rest of the discussion. As a preview, judicial minimalism has three core senses: first, decisional minimalism, associated most closely with Professor Cass Sunstein,³³ 33.Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court 3–6 (1999) [hereinafter Sunstein, One Case at a Time]; Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 6–10 (1996) [hereinafter Sunstein, Leaving Things Undecided].Show More which counsels judges to decide cases on narrow and shallow grounds; second, prudential minimalism, associated most closely with Professor Alexander Bickel,³⁴ 34.Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 111–98 (1962) [hereinafter Bickel, Least Dangerous Branch]; Alexander M. Bickel, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40, 47–51 (1961) [hereinafter Bickel, Passive Virtues].Show More which counsels judges to avail themselves of various techniques of not deciding cases (the so-called “passive virtues”) on grounds of prudence; and third, Thayerian minimalism, associated originally with Professor James Bradley Thayer,³⁵ 35.James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 144 (1893).Show More which counsels judges to refrain from invalidating the actions of the political branches except in cases of clear illegality. My focus in this Article is decisional minimalism, but I define the other two forms and consider their applications in lower courts too.

Equipped with this taxonomy, Part II surveys several key institutional features of lower federal courts that distinguish them from the Supreme Court and evaluates how these features might affect the proper judicial role.³⁶ 36.This Article is confined to the federal district courts and courts of appeals. There is much greater institutional variety among state courts than there is among lower federal courts, and that variety would have to inform any analysis of minimalism in those venues. Judicial elections, in particular, would affect the democracy-based justifications for minimalism. See Pozen, supranote 23, at 2052 (“Elected judges . . . might claim a special license to incorporate public opinion into their decisional process, to engage in majoritarian review.”); Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures, 122 Colum. L. Rev. (forthcoming 2022) (manuscript at 5–14), https://papers.ssrn.com/sol3/papers.cfm?abstra​ct_id=4016573 [https://perma.cc/WWC6-P82S] (laying out similarities and differences between state and federal courts). Nor will I discuss minimalism for so-called “Article I” judges or administrative agencies. See Laura K. Donohue & Jeremy McCabe, Federal Courts: Art. III(1), Art. I(8), Art. IV(3)(2), Art. II(2)/I(8)(3), and Art. II(1) Adjudication, 71 Cath. U. L. Rev. (forthcoming 2022) (manuscript at 3–5), https://papers.ssrn.com/sol3/papers.cfm?abst​ract_id=3825670 [https://perma.cc/4ZVH-XHJY] (discussing the full range of congressionally created courts); Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 Geo. L.J. 53, 56–77 (2011) (discussing a form of “minimalism” in agency policymaking).Show More The variables include docket size and judicial workload, the operative rules of stare decisis, the assignment of judges, the methods of case selection, and the processes of judicial appointment. I argue that the differences between lower courts and the Supreme Court along these lines make judicial minimalism in most of its forms a more compelling ideal in the lower courts.³⁷ 37.My focus is public law cases, particularly constitutional and administrative law. See Hanoch Dagan & Benjamin C. Zipursky, Introduction: The Distinction Between Private Law and Public Law, in Research Handbook on Private Law Theory1, 3 (Benjamin C. Zipursky & Hanoch Dagan eds., 2020). Private law in lower federal courts is complicated by Erie Railroad Co. v. Tompkins and the frequent primacy of state law. See 304 U.S. 64, 78 (1938). That said, decisional minimalism is a framework that is potentially applicable in any case, and this Article may very well have implications for federalized areas of private law like intellectual property, antitrust, or labor law. Cf.Shyamkrishna Balganesh, The Pragmatic Incrementalism of Common Law Intellectual Property, 63 Vand. L. Rev. 1543, 1564–67 (2010) (defending a minimalist approach to intellectual property disputes). But my normative prescriptions will probably have the most bite in prominent public law cases because that is where non-minimalist decisions will be rewarded most in our current partisan ecosystem. See infranotes 42, 375.Show More The differences also reveal that decisional minimalism is in deep tension with the institutional logic of the Supreme Court in its present form. The Court’s near-total control over its agenda, its own stated criteria for granting certiorari, its limited case load, and its structural role as a superintendent of federal law through rare and episodic interventions all make the modern Court, in an important sense, an inherently anti-minimalist institution.³⁸ 38.SeeFrederick Schauer, Abandoning the Guidance Function: Morse v Frederick, 2007 Sup. Ct. Rev. 205, 207–08 (criticizing decisional minimalism for undermining the Court’s “guidance function” in light of its limited case load); Tara Leigh Grove, The Structural Case for Vertical Maximalism, 95 Cornell L. Rev. 1, 3 (2009) (arguing that minimalism is in tension with the Constitution, which makes the Supreme Court “supreme” in defining the content of federal law). On the Supreme Court’s extensive powers of agenda control, see Henry Paul Monaghan, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Colum. L. Rev.665, 683–711 (2012).Show More

Part III considers how judicial minimalism might be inculcated in lower courts. I begin with the need to develop a distinctive concept of role fidelity for lower court judges fitted to their institutional situation. “Role fidelity” refers to the ways that a judge’s socially conditioned understanding of her role affects the way she fulfills that role.³⁹ 39.The concept of judicial “role fidelity” was pioneered by Professor Robert Cover in his study of anti-slavery judges before the Civil War. SeeCover, supranote 2, at 7, 192–93; see also Pozen, supranote 23, at 2084 (defining “role fidelity”).Show More One consequence of the Supreme Court fixation of so much public law scholarship (and pedagogy) is that it tends to flatten concepts of judicial role fidelity.⁴⁰ 40.SeeBarrett, supra note 19, at 352 (“We tend to take a one-size-fits-all approach to federal court decision-making, assuming that the same interpretive practices should apply throughout the federal courts.”).Show More A lower court judge is implicitly encouraged to act like a mini-Justice. But ideals of judicial craft should not be flat.⁴¹ 41.Pozen, supranote 23, at 2084 (noting the view that “there is no global ideal of judicial craft that exists independent of judicial structure”); Coenen & Davis, supranote 21, at 783 (arguing in favor of “assigning to different types of federal courts differentiated approaches to reviewing government action”) (italicization omitted).Show More And an important element of “role fidelity” for a lower court judge—that can be given life through doctrine, commentary, and the appointment process—is judicial minimalism.

Urging judges to be more minimalist is unlikely to be enough, however, because the current political climate and structure of the lower federal judiciary at times enable and even incentivize non-minimalist behavior by motivated judges.⁴² 42.Professor Suzanna Sherry has observed that Supreme Court Justices increasingly seem to “seek[] the approval of [their] own ideologically-polarized in-group” and that “[j]udicial polarization becomes a larger problem when coupled with the modern trend of declining institutional loyalty.” Suzanna Sherry, Our Kardashian Court (and How to Fix It), 106 Iowa L. Rev. 181, 191–92 (2020). Some recent instances of lower court maximalism suggest that similar forces may be seeping into all levels of the federal judiciary. Cf. Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L. Rev. 1373, 1437 (2021) (documenting a “dramatic spike in partisan en banc decision-making” in the courts of appeals and suggesting that there “are significant red flags to indicate that longstanding rule-of-law and collegiality norms on the federal bench are eroding”). One virtue of lower court minimalism is that it insists on a kind of judicial craft and humility that could resist the encroachments of polarization in the lower federal judiciary. SeeFrederick Schauer,Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior, 68 U. Cin. L. Rev. 615, 631 (2000) (suggesting that, at least twenty years ago, “prose and craft” might have been more important “determinants of reputation” for lower court judges than substantive outcomes, in contrast to Supreme Court Justices).Show More As a result, some structural reform is also important. I suggest reforming case-assignment rules, requiring the concurrence of more than one judge for nationwide injunctions, and, for reasons that are not entirely intuitive but that I will explain below, expanding the size of the federal bench. This may sound like an ambitious program. But, given that structural reform of the judiciary is on the table right now in a way that it has not been for generations, there is reason to be hopeful.

1. U.S. Const. art. III, § 1. ↑
2. Henry P. Monaghan, Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has To Teach Us, 69 Duke L.J. 1, 32 (2019). The present salience of lower federal courts may not be historically unprecedented. One thinks, for instance, of the lower courts as a focal point in the fight over federalism in the early Republic, Alison L. LaCroix, The Ideological Origins of American Federalism 179 (2010); of lower court enforcement of the fugitive slave laws, Robert Cover, Justice Accused: Antislavery and the Judicial Process 159–74 (1975); or of lower courts issuing injunctions against organized labor in the Progressive Era, William E. Forbath, The Shaping of the American Labor Movement, 102 Harv. L. Rev. 1109, 1148–65 (1989). ↑
3. See Bert I. Huang, Judicial Credibility, 61 Wm. & Mary L. Rev. 1053, 1060 (2020) (noting that the Trump era was “a political moment when numerous government actions [were] being blocked by the lower federal courts”); Fred Barbash, Deanna Paul, Brittany Renee Mayes & Danielle Rindler, Federal Courts Have Ruled Against Trump Administration Policies at Least 70 Times, Wash. Post (Apr. 26, 2019), https://www.washingtonpost.com/graphi​cs/2019/politic​s/trump-overruled/ [https://perma.cc/MR8E-WMTX] (“All administrations lose cases, but experts cannot recall so many losses in such a short time.”); Ian Millhiser, Just How Much Is Trump’s Judiciary Sabotaging the Biden Presidency?, Vox (Dec. 27, 2021) (on file with editors), https://www.​vox.com/22820378/trump-biden-supreme-court-judiciary-sabotage. ↑
4. E.g., Michael D. Shear, Stacy Cowley & Alan Rappeport, Biden’s Efforts at Race Equity Run into Snags, N.Y. Times
   

   ,

   June 27, 2021, at A1; Alexander Burns, Federal Judge Blocks New Ban on Travel to U.S., N.Y. Times

   ,

   Mar. 16, 2017, at A1. I represented the plaintiffs in the second of these cases, culminating in Trump v. Hawaii, 138 S. Ct. 2392 (2018). The views expressed in this Article are my own. ↑

5. See, e.g., Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1881 (2021) (ruling on narrow, case-specific grounds); id. at 1883 (Barrett, J., concurring) (defending this narrow disposition); id. at 1887–88 (Alito, J., concurring in the judgment) (criticizing the majority’s narrow disposition). I represented the City of Philadelphia in the Supreme Court in Fulton. Again, the positions taken here are mine. ↑
6. See infra Part I. ↑
7. E.g., David Cole, Surprising Consensus at the Supreme Court, N.Y. Rev. of Books (July 7, 2021), https://www.nybooks.com/articles/2021/08/19/surprising-consensus-at-the-supreme​-court/ [https://perma.cc/2VZH-9GDU] (discussing “minimalism” in the Supreme Court’s recently concluded Term); Jay Michaelson, Your Father’s Supreme Court, Intelligencer, N.Y. Mag. (July 3, 2021) (on file with editors), https://nymag.com/intelligencer/2021/07/your-fathers-supreme-court.ht​ml (same). ↑
8. Jonathan T. Molot, Principled Minimalism: Restriking the Balance Between Judicial Minimalism and Neutral Principles, 90 Va. L. Rev. 1753, 1776 (2004); Neal Devins, Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government, 69 Vand. L. Rev. 935, 938–39 (2016) (“Minimalism remains vibrant and is almost certainly the most important contemporary constitutional theory that formally takes into account the dynamic between the Supreme Court and elected government.”). ↑
9. See infra Part I. ↑
10. See Stephen G. Breyer, Reflections on the Role of Appellate Courts: A View from the Supreme Court, 8 J. App. Prac. & Process 91, 93 (2006) (noting that “the eighty cases that the Supreme Court hears annually represent the small tip of a vast iceberg” and that “most determinative legal interpretations occur instead in the federal courts of appeals, in the state supreme courts, and in state appellate courts”); Sanford Levinson, On Positivism and Potted Plants: Inferior Judges and the Task of Constitutional Interpretation, 25 Conn. L. Rev. 843, 844 (1993) (“The behavior of the roughly 100 circuit judges and 500 district judges is, for most citizens most of the time, far more likely to count as ‘the law’ than the pronouncements of the nine denizens of the Supreme Court . . . .”). ↑
11. See supra note 2. ↑
12. See, e.g., Perry Bacon Jr., The Most Dangerous Conservative Judges Aren’t on the Supreme Court, Wash. Post (Dec. 21, 2021), https://www.washingtonpost.com/opinions/20​21/​12/21/most-dangerous-conservative-judges-arent-supreme-court/ [https://perma.cc/J4KJ-VZ​TH]. ↑
13. See Edward A. Purcell, Jr., Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts, 24 Law & Soc. Inquiry 679, 681 (1999) (“Our excessive focus on the Supreme Court . . . has over the years minimized and obscured large areas of American experience . . . .”); Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 4 (1994) (“[W]hile numerous scholars have comprehensively explored the nature and function of judicial law declaration from the perspective of the Supreme Court or a hypothetical single-judge judiciary, few have considered the view from below and the interaction between subordinacy and function.”). ↑
14. See Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 Mich. L. Rev. 885, 920–22 (2003). Of course, at a high level of generality, legal scholarship had been preoccupied with institutional questions since at least the legal process school, see Edward L. Rubin, The New Legal Process, The Synthesis of Discourse, and the Microanalysis of Institutions, 109 Harv. L. Rev. 1393, 1396 (1996), but Professors Sunstein and Vermeule called for a more rigorously empirical and less stylized approach to institutional analysis. Sunstein & Vermeule, supra, at 897–913. ↑
15. Sunstein & Vermeule, supra note 14, at 886. ↑
16. See Ryan C. Williams, Lower Court Originalism, 45 Harv. J.L. & Pub. Pol’y 257 (2022). ↑
17. Katie Eyer, Lower Court Popular Constitutionalism, 123 Yale L.J. Online 197, 215–18 (2013). ↑
18. James J. Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 Wm. & Mary L. Rev. 681, 686 (2017); Aaron-Andrew P. Bruhl, Hierarchy and Heterogeneity: How to Read a Statute in a Lower Court, 97 Cornell L. Rev.
    

    433, 470–84 (2012). ↑

19. Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317, 318 (2005). ↑
20. Roger P. Alford, Lower Courts and Constitutional Comparativism, 77 Fordham L. Rev. 647, 656–64 (2008). ↑
21. Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777, 799–820 (2017) (arguing that the “major questions” exception to Chevron deference should not be applied in lower courts). ↑
22. Z. Payvand Ahdout, Enforcement Lawmaking and Judicial Review, 135 Harv. L. Rev. 937, 960–73 (2022) (evaluating lower courts’ use of case management techniques in recent separation-of-powers suits); Richard M. Re, Narrowing Supreme Court Precedent from Below, 104 Geo. L.J. 921, 925 (2016) (arguing that lower courts can legitimately “narrow” Supreme Court precedent in certain circumstances); Doni Gewirtzman, Lower Court Constitutionalism: Circuit Court Discretion in a Complex Adaptive System, 61 Am. U. L. Rev. 457, 506–09 (2012) (viewing lower court decision making through the lens of complexity theory). For a critique of the federal courts of appeals as they currently operate that blends historical, empirical, and normative strands, see generally William M. Richman & William L. Reynolds, Injustice on Appeal: The United States Courts of Appeals in Crisis (2013). ↑
23. See David E. Pozen, Judicial Elections as Popular Constitutionalism, 110 Colum. L. Rev. 2047, 2064–86 (2011) (exploring how judicial elections for state courts relate to theories of popular constitutionalism); Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833, 1842–76 (2001) (offering a comprehensive survey of justiciability doctrines in state courts); Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 166 (1984) (exploring the relationship between constitutional theory and “the world of the state courts”). ↑
24. In the 2020 Term, the Supreme Court issued only fifty-seven decisions in argued cases (and sixty-seven decisions including summary reversals and orders on the shadow docket). Stat Pack for the Supreme Court’s 2020–21 Term, SCOTUSBlog, https://www.scotusblog.co​m/statistics [https://perma.cc/SUY9-X5RD] (last visited May 20, 2022). The federal courts of appeals decide nearly fifty thousand cases per year. Admin. Off. of the U.S. Cts., Table B: U.S. Courts of Appeals––Cases Commenced, Terminated, and Pending During the 12-Month Periods Ending September 30, 2019 and 2020, at 1 (Sept. 30, 2020), https://www.uscourts.gov/sites​/default/files/data_tables/jb_b_0930.2020.pdf [https://perma.cc/U7M2-ESJB]. ↑
25. See infra notes 98–103 and accompanying text. ↑
26. See Jonathan S. Gould & David E. Pozen, Structural Biases in Structural Constitutional Law, 97 N.Y.U. L. Rev. (manuscript at 20) (forthcoming 2022), https://papers.ss​rn.com/sol3/papers.cfm?abstract_id=3797051 [https://perma.cc/56BE-6CKF] (noting the pro-Republican structural biases in our method for selecting judges); Joshua P. Zoffer & David Singh Grewal, The Counter-Majoritarian Difficulty of a Minoritarian Judiciary, 11 Calif. L. Rev. Online 437, 454–62 (2020) (documenting the rise of federal judges appointed by Presidents and Senators representing a minority of the populace and the resulting legitimacy crisis in the federal judiciary). ↑
27. See generally Presidential Comm’n on the Sup. Ct. of the U.S., Final Report
    

    (2021), https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.​pdf [https://perma.cc/K69J-T2C8] (summarizing and assessing potential Supreme Court reforms). ↑

28. Michael D. Shear & Carl Hulse, Biden Orders Panel’s Review on Expanding Supreme Court, N.Y. Times, Apr. 10, 2021, at A13; cf. David E. Pozen, Self-Help and the Separation of Powers, 124 Yale L.J. 2, 34 (2014) (“‘Court packing’ is especially out of bounds.”). ↑
29. E.g., Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 457–65 (2017). ↑
30. Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynksi & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1807, 1829 (2020). ↑
31. See, e.g., Ryan D. Doerfler & Samuel Moyn, Democratizing the Supreme Court, 109 Calif. L. Rev. 1703, 1727 (2021) (proposing that a supermajority of Justices be required to strike down federal legislation); Howard M. Wasserman, Congress and Universal Injunctions, 2021 Cardozo L. Rev. De Novo 187, 192–201 (discussing various proposals to reform nationwide or “universal” injunctions in Congress); cf. K. Sabeel Rahman, Constitutional Law 101: A Primer for the Law and Political Economy Blog, LPE Project (Nov. 23, 2018), https://lpeproject.org/blog/constitutional-law-101-a-primer-for-the-law-and-political-econom​y-blog-3/ [https://perma.cc/UK7N-BSVU] (“[V]iewed from a political economic lens, the battle for inclusion may sometimes involve judicial intervention, and other times involve judicial minimalism.”). ↑
32. See supra notes 10, 24. Indeed, it is even possible that lower court reform could achieve some of the same ends as “packing” the Supreme Court. See McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 S. Cal. L. Rev. 1631, 1634 (1995) (“[U]nder the appropriate circumstances, expansion of the lower judiciary can have the same effect on judicial doctrine as packing the Supreme Court.”). ↑
33. Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court 3–6 (1999) [hereinafter Sunstein, One Case at a Time]; Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 6–10 (1996) [hereinafter Sunstein, Leaving Things Undecided]. ↑
34. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics
    

    111–98

    (1962) [hereinafter Bickel, Least Dangerous Branch]; Alexander M. Bickel, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40, 47–51 (1961) [hereinafter Bickel, Passive Virtues]. ↑

35. James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 144 (1893). ↑
36. This Article is confined to the federal district courts and courts of appeals. There is much greater institutional variety among state courts than there is among lower federal courts, and that variety would have to inform any analysis of minimalism in those venues. Judicial elections, in particular, would affect the democracy-based justifications for minimalism. See Pozen, supra note 23, at 2052 (“Elected judges . . . might claim a special license to incorporate public opinion into their decisional process, to engage in majoritarian review.”); Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures, 122 Colum. L. Rev. (forthcoming 2022) (manuscript at 5–14), https://papers.ssrn.com/sol3/papers.cfm?abstra​ct_id=4016573 [https://perma.cc/WWC6-P82S] (laying out similarities and differences between state and federal courts). Nor will I discuss minimalism for so-called “Article I” judges or administrative agencies. See Laura K. Donohue & Jeremy McCabe, Federal Courts: Art. III(1), Art. I(8), Art. IV(3)(2), Art. II(2)/I(8)(3), and Art. II(1) Adjudication, 71 Cath. U. L. Rev. (forthcoming 2022) (manuscript at 3–5), https://papers.ssrn.com/sol3/papers.cfm?abst​ract_id=3825670 [https://perma.cc/4ZVH-XHJY] (discussing the full range of congressionally created courts); Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 Geo. L.J. 53, 56–77 (2011) (discussing a form of “minimalism” in agency policymaking). ↑
37. My focus is public law cases, particularly constitutional and administrative law. See Hanoch Dagan & Benjamin C. Zipursky, Introduction: The Distinction Between Private Law and Public Law, in Research Handbook on Private Law Theory 1, 3 (Benjamin C. Zipursky & Hanoch Dagan eds., 2020). Private law in lower federal courts is complicated by Erie Railroad Co. v. Tompkins and the frequent primacy of state law. See 304 U.S. 64, 78 (1938). That said, decisional minimalism is a framework that is potentially applicable in any case, and this Article may very well have implications for federalized areas of private law like intellectual property, antitrust, or labor law. Cf. Shyamkrishna Balganesh, The Pragmatic Incrementalism of Common Law Intellectual Property, 63 Vand. L. Rev. 1543, 1564–67 (2010) (defending a minimalist approach to intellectual property disputes). But my normative prescriptions will probably have the most bite in prominent public law cases because that is where non-minimalist decisions will be rewarded most in our current partisan ecosystem. See infra notes 42, 375. ↑
38. See Frederick Schauer, Abandoning the Guidance Function: Morse v Frederick, 2007 Sup. Ct. Rev. 205, 207–08 (criticizing decisional minimalism for undermining the Court’s “guidance function” in light of its limited case load); Tara Leigh Grove, The Structural Case for Vertical Maximalism, 95 Cornell L. Rev. 1, 3 (2009) (arguing that minimalism is in tension with the Constitution, which makes the Supreme Court “supreme” in defining the content of federal law). On the Supreme Court’s extensive powers of agenda control, see Henry Paul Monaghan, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Colum. L. Rev.
    

    665, 683–711 (2012). ↑

39. The concept of judicial “role fidelity” was pioneered by Professor Robert Cover in his study of anti-slavery judges before the Civil War. See Cover, supra note 2, at 7, 192–93; see also Pozen, supra note 23, at 2084 (defining “role fidelity”). ↑
40. See Barrett, supra note 19, at 352 (“We tend to take a one-size-fits-all approach to federal court decision-making, assuming that the same interpretive practices should apply throughout the federal courts.”). ↑
41. Pozen, supra note 23, at 2084 (noting the view that “there is no global ideal of judicial craft that exists independent of judicial structure”); Coenen & Davis, supra note 21, at 783 (arguing in favor of “assigning to different types of federal courts differentiated approaches to reviewing government action”) (italicization omitted). ↑

42. Professor Suzanna Sherry has observed that Supreme Court Justices increasingly seem to “seek[] the approval of [their] own ideologically-polarized in-group” and that “[j]udicial polarization becomes a larger problem when coupled with the modern trend of declining institutional loyalty.” Suzanna Sherry, Our Kardashian Court (and How to Fix It), 106 Iowa L. Rev. 181, 191–92 (2020). Some recent instances of lower court maximalism suggest that similar forces may be seeping into all levels of the federal judiciary. Cf. Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L. Rev. 1373, 1437 (2021) (documenting a “dramatic spike in partisan en banc decision-making” in the courts of appeals and suggesting that there “are significant red flags to indicate that longstanding rule-of-law and collegiality norms on the federal bench are eroding”). One virtue of lower court minimalism is that it insists on a kind of judicial craft and humility that could resist the encroachments of polarization in the lower federal judiciary. See Frederick Schauer, Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior, 68 U. Cin. L. Rev. 615, 631 (2000) (suggesting that, at least twenty years ago, “prose and craft” might have been more important “determinants of reputation” for lower court judges than substantive outcomes, in contrast to Supreme Court Justices). ↑