In Macro-Judging and Article III Exceptionalism, Professor Merritt E. McAlister spotlights largely overlooked aspects of the operation of federal courts that work against the interests of litigants and society. Not only does the article expose the unintended consequences of institutional design choices, but it is written in an engaging and accessible style that more of us should emulate.
Broadly speaking, Professor McAlister analyzes and critiques the reshaping of the operation of the federal courts over the last fifty years through decisions concerning judicial workflow and workload. This reshaping is the product of what she calls “macro-judging,” i.e., “macro-level” decisions made or influenced by Article III judges concerning who decides which cases and how they decide them. Although “macro-judging” decisions over the last fifty years may have enhanced judicial efficiency, the aggregate effect has been to prioritize “the view that Article III courts are ‘special’ places, with elite judges whose work should focus on only the most important federal cases.” In other words, the effect of macro-judging decisions by the Article III judiciary has been to “entrench [ ] . . . Article III exceptionalism.” This article persuasively illustrates that Article III exceptionalism has had negative consequences for the public interest, and it lights a path toward reform.
In framing the problem of Article III exceptionalism, Professor McAlister explains that the reorganization of the operations of the federal judiciary was largely a response to “competing crises,” namely, “a vast rise in the number of small, seemingly pedestrian federal cases and an increase in both the number and complexity of ‘big’ cases.” Instead of lobbying to expand their ranks, Article III judges pushed for addressing the crises through means that preserved and even enhanced their own prestige.
At the trial court level, federal courts shunted their more routine or boring work to less prestigious judicial officers with far less job protection and lower pay. These Article I “adjuncts” to Article III judges include the federal magistrate judges, bankruptcy judges, and administrative law judges who now handle the vast bulk of the federal judicial workload on the civil side. Without them, the federal judicial system would cease to function, but their “lesser” status serves to emphasize the exalted status of their Article III brethren.
Article III judges also used “case management” tactics to exalt their status by keeping the most complex and interesting cases for themselves. Professor McAlister shows how the procedural device that allows a judicial panel to transfer and consolidate federal cases with similar facts to a single district court judges confers “elite status” on the judge to whom the “multidistrict litigation” is transferred. This procedure allows a single judge to resolve thousands of cases in one fell swoop, and these cases sometimes involve the most important, high-profile litigation in the country. The result is that “district court judges over the last fifty years have acted collectively to consolidate their authority, delegate their least sophisticated or valued work to others, and attract higher-profile, more elite civil work for themselves.”
At the federal appeals court level, judges also have taken measures to dispense quickly with cases that appear to be routine, to save their attention and energy for the most interesting and high-profile cases. Under its “triage” system, federal appeals courts do not schedule for oral argument cases that are preliminarily deemed easy; instead, judges resolve these cases without written decision, often by rubber-stamping the recommendations of staff attorneys. As Professor McAlister demonstrates, the effect is to funnel judicial energies toward “important” cases, while shifting their energies away from “unimportant” ones, which disproportionately comprise those brought by unrepresented or other marginalized litigants.
She also traces these same trends through macro-judging decisions reshaping Supreme Court operations. In 1988, the Supreme Court succeeded in convincing Congress to eliminate its mandatory jurisdiction, allowing it to completely control its caseload. The effect? A very dramatic reduction in the number of “merits” cases decided by the Court, providing Justices “more time to devote to their merits docket (including writing longer decisions or more separate decisions) and to engage in other pursuits (like seeking public recognition, getting book advances, and doing high-profile speaking gigs in far-flung locales).”
Meanwhile, and perhaps relatedly, the Court has refused to adopt ethics rules while such matters “are beyond congressional purview.” At the same time, a “judicial cult of personality” has taken hold: with their increased leisure time to write books, give speeches, and draft separate opinions, Justices seem to “have more time for pursuits that exalt themselves.” This affects judicial modesty and restraint, and, as Professor McAlister provocatively argues, may ultimately be detrimental to the public interest.
One of the strongest facets of this remarkably good article is its exploration of the dark side of the intensification of the “special” status of Article III courts. “Macro-judging” (again, the many decisions about how the federal courts operate) runs the risk of tainting “micro-judging,” the individual judicial decisions resolving cases—decisions that change the lives of the litigants and definitively interpret society’s operating rules. Macro-judging decisions that aggrandize judicial power and prestige will often work to the detriment of the least powerful in society: fewer, if any, judicial resources will be dedicated to hearing their cases, and less authoritative rulings will result in matters concerning them. As Professor McAlister points out, this is “reason enough for more aggressive congressional oversight and lawmaking in these areas.”
Professor McAlister’s proposals to counteract Article III exceptionalism are sound. First, she urges reinvigoration of Congress’s operational oversight of the federal courts in ways that would enhance the rule of law and improve the quality of justice for all. Congress must “resist judicial capture” and “act with greater sensitivity to the possibility of judicial aggrandizement—including, especially, by inviting dissenting voices and different constituencies into what formal processes exist.” Congress should be especially skeptical of judicial objections to court expansion, which often are a product of “entrenched (and rampant) elitism.” Building on the work of other scholars, she also urges Congress to consider requiring the Supreme Court to issue, without dissents or concurrences, unsigned per curiam decisions in every case. Or Congress might limit the issuance of nationwide injunctions, expand the federal judiciary, or take other measures to decrease the federal courts’ autonomy over their workload. All these options represent possible avenues for reform worthy of the further consideration this article ought to inspire.
Ultimately, Professor McAlister issues an optimistic call to action rooted in a desire to improve the quality of justice, and not merely the judiciary’s self-perception. She writes:
There’s every reason to think reforms that disturb the exceptionalism narrative of Article III might return the courts to a more passive, minimalist, or public-service orientation. . . .
Design features can encourage or discourage boldness and aggrandizement; they can elevate or diminish the public-service orientation of the federal courts; they, ultimately, have the power to define what is important to our judicial institutions. My point is this: it’s time for the people—acting through our elected representatives— to set our own judicial priorities for the Article III courts. Greater regulation of macro-judging may be one way to re-align those priorities to privilege the public-service mission of the judiciary—that is, a mission that heeds the priorities set by a democratic process—over the aggrandizement of Article III.
As I hope this review illustrates, her article makes a significant contribution to the literature on federal courts by identifying the tremendous and often overlooked costs of Article III exceptionalism. Further, it stands as a useful and timely corrective to a tendency within the legal academy and profession and sometimes the society at large “to romanticize or canonize the federal judiciary.” I hope the article’s sensible proposals for reform will receive the attention they deserve—and not merely within legal academia.
It is a testament to the thought-provoking quality of the article that it made me consider whether other recent Supreme Court practices I have been studying recently, such as anticipatory overruling or shadow docket signaling, might be operational decisions contributing to Article III exceptionalism. The exclusion of cameras in federal courts is another phenomenon suggesting our federal judges are “too special” for the tawdry scrutiny of the masses. (The rhetoric federal judges have used to reject cameras in the courtroom amply supports Professor McAlister’s thesis about judicial self-interest and self-perception.) Her article also made me wonder how the increased difficulty today of obtaining Senate confirmation affects judicial notions of “specialness” or otherwise affects subsequent judicial behavior. All this is to say that this article is generative. It is just the beginning of the tremendous contribution Professor McAlister’s work can make to our understanding, and perhaps reform, of the operation of the federal judiciary.
