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). ↑

The post Judicial Minimalism in the Lower Courts first appeared on Virginia Law Review.

To date, there has not been any systematic effort to compare gloss and liquidation, even though the differences between them bear on the constitutionality of a range of governmental practices relating to both domestic and foreign affairs in the fields of constitutional law and federal courts. This Article fills that gap in the literature. We first provide an account of what must be shown in order to establish historical gloss. Our account focuses on longstanding governmental practices that have proven to be stable—that is, practices that have operated for a significant amount of time without generating continued interbranch contestation. We then consider the extent to which the liquidation concept differs from that of gloss and whether those differences render liquidation more or less normatively attractive than gloss. We argue that a narrow account of liquidation, which would focus primarily on early historical practice and disallow “re-liquidation” of constitutional meaning once it had become settled by practice, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic. We further argue that a broader account of liquidation, as recently offered by Professor William Baude, responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. We also question whether either account of liquidation is properly attributed to Madison.

Introduction

In discerning the Constitution’s separation of powers, it is common for courts, the political branches, and academic commentators to give weight to post-Founding governmental practice.¹ 1.See generally Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411 (2012).Show More Reliance on such practice is sometimes referred to as the “historical gloss” method of constitutional interpretation, based on the way that Justice Frankfurter described the concept in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer.² 2.343 U.S. 579 (1952).Show More In that decision, the Supreme Court held that President Truman had exceeded his constitutional authority in attempting to seize the nation’s steel mills during the Korean War to avert a strike.³ 3.Id. at 582–84.Show More Frankfurter wrote separately to consider whether and to what extent historical practice might support Truman’s authority to seize the mills.⁴ 4.Id. at 593–628 (Frankfurter, J., concurring).Show More

Frankfurter argued that historic governmental practice was relevant to the question of the President’s seizure authority, asserting that “[i]t is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.”⁵ 5.Id. at 610.Show More In his view, although “[d]eeply embedded traditional ways of conducting government” could not “supplant the Constitution or legislation,” they could “give meaning to the words of a text or supply them.”⁶ 6.Id.Show More Frankfurter reviewed the historical practice concerning executive seizure of property, however, and found it insufficient to sustain Truman’s action. Finding only three instances of presidential seizures comparable to the one at issue in the case, all of which occurred in 1941, Frankfurter concluded that “these three isolated instances do not add up, either in number, scope, duration or contemporaneous legal justification, to the kind of executive construction of the Constitution [that we have previously credited],” “[n]or do they come to us sanctioned by long-continued acquiescence of Congress giving decisive weight to a construction by the Executive of its powers.”⁷ 7.Id. at 613.Show More

The Supreme Court’s reliance on historical practice in discerning the separation of powers long predates Frankfurter’s concurrence in Youngstown. For example, in a 1915 case, United States v. Midwest Oil Co., the Court rejected a challenge to President Taft’s decision to temporarily withdraw certain public lands from private development, emphasizing the “long continued practice [of making] orders like the one here involved.”⁸ 8.236 U.S. 459, 469 (1915).Show More Along similar lines, the Court in the 1920s, in concluding that the President’s pardon power extends to a conviction for contempt of court, reasoned that “long practice under the pardoning power and acquiescence in it strongly sustains the construction it is based on.”⁹ 9.Ex parte Grossman, 267 U.S. 87, 118–19 (1925).Show More And, in another decision from that period, the Court emphasized longstanding presidential practice when considering the circumstances under which the President’s “pocket veto”—that is, failure to sign a bill before Congress recesses—should be deemed to operate.¹⁰ 10.The Pocket Veto Case, 279 U.S. 655, 689 (1929) (“Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions of this character.”).Show More

A number of the Supreme Court’s modern separation of powers decisions have also relied heavily on historical practice. In 1981, in Dames & Moore v. Regan, the Court upheld executive orders transferring billions of dollars in claims to an international tribunal in The Hague, as part of the resolution of the Iranian hostage crisis, in large part based on the historical practice of presidential settlement of claims.¹¹ 11.453 U.S. 654 (1981).Show More In doing so, the Court expressly invoked Justice Frankfurter’s discussion of historical gloss.¹² 12.See id. at 686.Show More Two more recent decisions have particularly emphasized the importance of historical practice. In 2014, the Court in NLRB v. Noel Canning relied heavily on historical practice in construing the scope of the President’s authority to make recess appointments.¹³ 13.134 S. Ct. 2550 (2014); see also Curtis A. Bradley & Neil S. Siegel, After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession, 2014 Sup. Ct. Rev. 1 (analyzing the role of historical practice in Noel Canning).Show More The Court explained that, because “the interpretive questions before us concern the allocation of power between two elected branches of Government,” it was appropriate to “put significant weight upon historical practice.”¹⁴ 14.Noel Canning, 134 S. Ct. at 2559 (emphasis omitted).Show More The following year, in Zivotofsky v. Kerry, the Court again emphasized historical practice, this time in concluding that the President has an exclusive authority to recognize foreign governments and their territories that cannot be limited by Congress.¹⁵ 15.135 S. Ct. 2076, 2091 (2015) (“In separation-of-powers cases this Court has often ‘put significant weight upon historical practice.’” (quoting Noel Canning, 134 S. Ct. at 2559)).Show More

Reliance on historical practice has also long been a staple of constitutional reasoning within the executive branch. To take one of many examples, executive branch lawyers rely extensively on practice in discerning the scope of the President’s constitutional authority to use military force. In 2018, for instance, the Justice Department’s Office of Legal Counsel (“OLC”) concluded, based largely on historical practice, that President Trump had the power to direct airstrikes against Syria in response to its use of chemical weapons during the civil war there.¹⁶ 16.April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities, 42 Op. O.L.C. __ (May 31, 2018), https://www.justice.gov/olc/opinion/file/1067551/­download [https://perma.­cc/QN7Q-HZKR].Show More Citing to earlier opinions from the Office, including one from 1970, OLC explained: “We have recognized that ‘[s]ince judicial precedents are virtually non-existent’ in defining the scope of the President’s war powers, ‘the question is one which of necessity must be decided by historical practice.’”¹⁷ 17.Id. at5 (quoting Presidential Authority to Permit Incursion into Communist Sanctuaries in the Cambodia-Vietnam Border Area, 1 Op. O.L.C. Supp. 313, 317 (1970)).Show More Similarly, in 2011 OLC concluded, based largely on historical practice, that President Obama had the constitutional authority to direct U.S. military forces to take part in bombing operations in Libya without first seeking congressional authorization.¹⁸ 18.See Authority to Use Military Force in Libya, 35 Op. O.L.C. __ (Apr. 1, 2011), http://www.justice.gov/sites/default/files/olc/opinions/2011/04/31/authority-military-use-in-libya.pdf [https://perma.cc/G8RU-VLF7].Show More Quoting from an earlier legal opinion concerning a military intervention in Haiti, OLC asserted that “the pattern of executive conduct, made under claim of right, extended over many decades and engaged in by Presidents of both parties, evidences the existence of broad constitutional power.”¹⁹ 19.Id. at 7 (internal quotation marks omitted) (quoting Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173, 178 (1994)).Show More

Despite the prevalence of that sort of constitutional reasoning in the judiciary and the executive branch, until recently few academic commentators had given significant attention to it, or to its relationship to other approaches to constitutional interpretation. That started to change in 2012, when one of us co-authored an article exploring those questions.²⁰ 20.See Bradley & Morrison, supra note 1.Show More The Noel Canning decision two years later further heightened interest in the relevance of historical practice to the separation of powers. Since then, a number of commentators, including the two of us, have continued to try to unpack the concept of historical gloss.²¹ 21.See, e.g., Curtis A. Bradley & Neil S. Siegel, Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers, 105 Geo. L.J. 255 (2017) (examining the concept of historical gloss and its relationship to nonlegal but obligatory “constitutional conventions”); Curtis A. Bradley, Doing Gloss, 84 U. Chi. L. Rev. 59 (2017) (examining the relationship between how the historical gloss approach is implemented and the reasons for crediting historical practice); Bradley & Siegel, supra note 13 (analyzing the role of historical practice in Noel Canning).Show More

Some originalist commentators have invoked a different term to describe the relevance of post-Founding practice to constitutional interpretation: “liquidation.” Drawing on references to that term by James Madison and certain other members of the Founding generation, those commentators have outlined the conditions under which post-Founding practice can potentially “liquidate” indeterminate constitutional meaning such that it becomes “fixed.”²² 22.In referring to “indeterminacy” in this Article, we are using it as a shorthand to encompass a range of circumstances in which the meaning of the constitutional text is under-determinate, including instances of “ambiguity, vagueness, gaps, and contradictions.” SeeLawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 469–72 (2013).Show More The Supreme Court, too, has sometimes invoked the idea of “fixing” constitutional meaning when referring to the relevance of historical practice to constitutional interpretation.²³ 23.See, e.g., Myers v. United States, 272 U.S. 52, 175 (1926) (“[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions.”); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (rejecting a constitutional challenge to Congress’s requirement that Supreme Court Justices sit on circuit courts, explaining that “practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction”).Show More The word “liquidation” is used in that context to mean essentially the opposite of the principal modern connotation of the word; instead of signifying dissolution (as in a “liquidation sale”), it is used to signify solidification or determination (as in “liquidated damages”).²⁴ 24.An obsolete meaning of “liquidate,” which is derived from the Late Latin “liquidare,” is “to make clear or plain (something obscure or confused); to render unambiguous; to settle (differences, disputes).” Liquidate, The Oxford English Dictionary (2d ed. 1989).Show More

In part because the concepts of gloss and liquidation have only recently begun to receive sustained academic attention, it is not entirely clear whether and to what extent they do or should differ from one another. In Noel Canning, the Court seemed to assume that liquidation and gloss were the same phenomenon. After quoting a reference to liquidation by Madison, the Court wrote that “our cases have continually confirmed Madison’s view.”²⁵ 25.134 S. Ct. 2550, 2560 (2014).Show More In its string cite of decisions, however, the Court included a number of decisions claimed by supporters of the gloss approach, including Frankfurter’s concurrence in Youngstown.²⁶ 26.See id. (citing Mistretta v. United States, 488 U.S. 361, 401 (1989); Dames & Moore v. Regan, 453 U.S. 654, 686 (1981); Youngstown, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, 279 U.S. 655, 689–90 (1929); Ex parte Grossman, 267 U.S. 87, 118–19 (1925); United States v. Midwest Oil Co., 236 U.S. 459, 472–74 (1915); McPherson v. Blacker, 146 U.S. 1, 27 (1892); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819); and Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803)).Show More Legal scholars also appear to be confused about the distinction, if any, between gloss and liquidation. Writing a year after Noel Canning, Professor Richard Fallon expressed uncertainty, describing gloss as “[c]losely related” to liquidation but “possibly more capacious.”²⁷ 27.Richard H. Fallon, Jr., The Many and Varied Roles of History in Constitutional Adjudication, 90 Notre Dame L. Rev. 1753, 1775 (2015); see also Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465, 541 & n.424 (2018) (discussing “gloss” and stating that “[i]n a somewhat similar vein, Caleb Nelson and William Baude have suggested that political practice can ‘liquidate’ (that is, settle) the meaning of ‘contestable’ constitutional provisions” (emphasis added)).Show More

Although originalists often focus on history, usually it is history relating to the constitutional Founding and the pre-Founding period.²⁸ 28.See Jack M. Balkin, The New Originalism and the Uses of History, 82 Fordham L. Rev. 641, 655–57 (2013) (describing how originalism has traditionally focused on history relating to the adoption of the Constitution and its amendments).Show More Perhaps because of that, for many years the only scholar to have extensively addressed liquidation was Professor Caleb Nelson, who described it in primarily historical terms.²⁹ 29.Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 525–53 (2003) [hereinafter Nelson, Originalism and Interpretive Conventions]; Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 10–21 (2001) [hereinafter Nelson, Stare Decisis].Show More In a more recent article, however, Professor William Baude has offered a more detailed and contemporary account of the concept.³⁰ 30.William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019).Show More Meanwhile, the historian Jonathan Gienapp has published an important study of how, over the course of the 1790s, Madison and others in the Founding generation changed their understanding of the nature of the Constitution, including its relationship to historical practice.³¹ 31.Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (2018).Show More

In this Article, we consider whether and to what extent the concept of liquidation differs from that of gloss. We also consider whether, to the extent that there are differences between liquidation and gloss, those differences render liquidation more or less normatively attractive than gloss. We argue that a narrow account of liquidation, which would look primarily to early historical practice and disallow “re-liquidation” once constitutional meaning had become settled through practice, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic. We then argue that Baude’s broader account of liquidation responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. Finally, we question whether either account of liquidation is properly attributed to Madison.

The differences between gloss and liquidation matter. In part because of recent judicial appointments to both the Supreme Court and the lower federal courts, originalism may be experiencing a resurgence.³² 32.See, e.g., Lawrence B. Solum, Legal Theory Lexicon 019: Originalism, Legal Theory Blog (last revised Aug. 11, 2019), https://lsolum.typepad.com/legal_theory_lexicon/2004/01/­legal_theory_le_1.html [https://perma.cc/UVY2-E25D] (“The current Supreme Court has at least two members who seem strongly influenced by originalist constitutional theory—Associate Justices Neil Gorsuch and Clarence Thomas. Three other[] Justices, John Roberts, Samuel Alito, and Brett Kavanaugh[,] may also be receptive to originalist arguments—at least in some cases.”).Show More At the same time, originalist theory has become more receptive to accommodating various non-originalist materials, including historical practice.³³ 33.See infra notes 45–53 and accompanying text.Show More Unlike the changes in originalist theory over the years—from a focus on the intentions of the Framers, to the understandings of the ratifiers, to the original public meaning of the constitutional text—and unlike the originalist embrace of judicial precedent and the idea of “constitutional construction,”³⁴ 34.See id.Show More originalist efforts to claim a greater role for post-Founding historical practice as within the originalist project have not yet received much attention or recognition as such. Like those other “impurifications” of originalism, however, the originalist turn to practice presents originalists with difficult tradeoffs.³⁵ 35.For analysis of the phenomenon of theory “working itself impure,” with originalism as one of several case studies, see Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819 (2016).Show More As we will explain below, those tradeoffs vary depending on whether one opts for gloss or liquidation. More concretely, the constitutionality of many important and longstanding governmental practices in the fields of both constitutional law and federal courts may depend on that choice. Examples include the recess appointments practices accepted in Noel Canning; the extensive modern practice of using congressional-executive agreements in lieu of Senate-approved treaties; presidential authority to order small-scale or short-term uses of military force without congressional authorization; the authority of presidents to withdraw the United States from treaties; the longstanding practice of permitting non-Article III courts to adjudicate federal law cases subject to certain limitations; and the even longer practice of vesting less than the full Article III judicial power in the federal courts notwithstanding the ostensibly mandatory language of Article III.³⁶ 36.See infra notes 54–55, 115–124 and accompanying text.Show More

Part I explains why attention to post-Founding historical practice fits more naturally with non-originalist theories of constitutional interpretation than with originalist theories, and it considers why some originalists are nevertheless paying increasing attention to practice. Part II describes the historical gloss approach and explains why, under most accounts, it does not require evidence of an interbranch agreement about the meaning of the Constitution. It also argues that gloss is most defensible in the separation of powers context. Part III assesses the extent to which the liquidation approach is distinct from gloss. It argues that, even under the relatively broad account of the concept recently offered by Baude, there are differences, and that those differences render liquidation normatively less attractive than gloss. Part IV explains why it is doubtful that the liquidation approach as described by scholars such as Nelson and Baude can properly be attributed to Madison. The Article concludes by underscoring the importance of historical practice in light of the age, brevity, and difficulty of amending the Constitution.

1. * Bradley is the William Van Alstyne Professor, Duke Law School. Siegel is the David W. Ichel Professor, Duke Law School. For helpful comments and suggestions, we thank Matt Adler, Jack Balkin, Will Baude, Joseph Blocher, Jamie Boyle, Kathy Bradley, John De Figueiredo, Richard Fallon, Jonathan Gienapp, Tara Grove, Aziz Huq, Vicki Jackson, Margaret Lemos, Sanford Levinson, Marin Levy, William Marshall, Caleb Nelson, H. Jefferson Powell, David Pozen, Daphna Renan, Lawrence Solum, Mark Tushnet, Ernest Young, participants in a faculty workshop at Duke Law School, and the editors of the Virginia Law Review. ↑

2. ↑
3. See generally Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411 (2012). ↑
4. 343 U.S. 579 (1952). ↑
5. Id. at 582–84. ↑
6. Id. at 593–628 (Frankfurter, J., concurring). ↑
7. Id. at 610. ↑
8. Id. ↑
9. Id. at 613. ↑
10. 236 U.S. 459, 469 (1915). ↑
11. Ex parte Grossman, 267 U.S. 87, 118–19 (1925). ↑
12. The Pocket Veto Case, 279 U.S. 655, 689 (1929) (“Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions of this character.”). ↑
13. 453 U.S. 654 (1981). ↑
14. See id. at 686. ↑
15. 134 S. Ct. 2550 (2014); see also Curtis A. Bradley & Neil S. Siegel, After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession, 2014 Sup. Ct. Rev. 1 (analyzing the role of historical practice in Noel Canning). ↑
16. Noel Canning, 134 S. Ct. at 2559 (emphasis omitted). ↑
17. 135 S. Ct. 2076, 2091 (2015) (“In separation-of-powers cases this Court has often ‘put significant weight upon historical practice.’” (quoting Noel Canning, 134 S. Ct. at 2559)). ↑
18. April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities, 42 Op. O.L.C. __ (May 31, 2018), https://www.justice.gov/olc/opinion/file/1067551/­download [https://perma.­cc/QN7Q-HZKR]. ↑
19. Id. at 5 (quoting Presidential Authority to Permit Incursion into Communist Sanctuaries in the Cambodia-Vietnam Border Area, 1 Op. O.L.C. Supp. 313, 317 (1970)). ↑
20. See Authority to Use Military Force in Libya, 35 Op. O.L.C. __ (Apr. 1, 2011), http://www.justice.gov/sites/default/files/olc/opinions/2011/04/31/authority-military-use-in-libya.pdf [https://perma.cc/G8RU-VLF7]. ↑
21. Id. at 7 (internal quotation marks omitted) (quoting Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173, 178 (1994)). ↑
22. See Bradley & Morrison, supra note 1. ↑
23. See, e.g., Curtis A. Bradley & Neil S. Siegel, Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers, 105 Geo. L.J. 255 (2017) (examining the concept of historical gloss and its relationship to nonlegal but obligatory “constitutional conventions”); Curtis A. Bradley, Doing Gloss, 84 U. Chi. L. Rev. 59 (2017) (examining the relationship between how the historical gloss approach is implemented and the reasons for crediting historical practice); Bradley & Siegel, supra note 13 (analyzing the role of historical practice in Noel Canning). ↑
24. In referring to “indeterminacy” in this Article, we are using it as a shorthand to encompass a range of circumstances in which the meaning of the constitutional text is under-determinate, including instances of “ambiguity, vagueness, gaps, and contradictions.” See Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 469–72 (2013). ↑
25. See, e.g., Myers v. United States, 272 U.S. 52, 175 (1926) (“[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions.”); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (rejecting a constitutional challenge to Congress’s requirement that Supreme Court Justices sit on circuit courts, explaining that “practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction”). ↑
26. An obsolete meaning of “liquidate,” which is derived from the Late Latin “liquidare,” is “to make clear or plain (something obscure or confused); to render unambiguous; to settle (differences, disputes).” Liquidate, The Oxford English Dictionary (2d ed. 1989). ↑
27. 134 S. Ct. 2550, 2560 (2014). ↑
28. See id. (citing Mistretta v. United States, 488 U.S. 361, 401 (1989); Dames & Moore v. Regan, 453 U.S. 654, 686 (1981); Youngstown, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, 279 U.S. 655, 689–90 (1929); Ex parte Grossman, 267 U.S. 87, 118–19 (1925); United States v. Midwest Oil Co., 236 U.S. 459, 472–74 (1915); McPherson v. Blacker, 146 U.S. 1, 27 (1892); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819); and Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803)). ↑
29. Richard H. Fallon, Jr., The Many and Varied Roles of History in Constitutional Adjudication, 90 Notre Dame L. Rev. 1753, 1775 (2015); see also Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465, 541 & n.424 (2018) (discussing “gloss” and stating that “[i]n a somewhat similar vein, Caleb Nelson and William Baude have suggested that political practice can ‘liquidate’ (that is, settle) the meaning of ‘contestable’ constitutional provisions” (emphasis added)). ↑
30. See Jack M. Balkin, The New Originalism and the Uses of History, 82 Fordham L. Rev. 641, 655–57 (2013) (describing how originalism has traditionally focused on history relating to the adoption of the Constitution and its amendments). ↑
31. Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 525–53 (2003) [hereinafter Nelson, Originalism and Interpretive Conventions]; Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 10–21 (2001) [hereinafter Nelson, Stare Decisis]. ↑
32. William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019). ↑
33. Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (2018). ↑
34. See, e.g., Lawrence B. Solum, Legal Theory Lexicon 019: Originalism, Legal Theory Blog (last revised Aug. 11, 2019), https://lsolum.typepad.com/legal_theory_lexicon/2004/01/­legal_theory_le_1.html [https://perma.cc/UVY2-E25D] (“The current Supreme Court has at least two members who seem strongly influenced by originalist constitutional theory—Associate Justices Neil Gorsuch and Clarence Thomas. Three other[] Justices, John Roberts, Samuel Alito, and Brett Kavanaugh[,] may also be receptive to originalist arguments—at least in some cases.”). ↑
35. See infra notes 45–53 and accompanying text. ↑
36. See id. ↑
37. For analysis of the phenomenon of theory “working itself impure,” with originalism as one of several case studies, see Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819 (2016). ↑
38. See infra notes 54–55, 115–124 and accompanying text. ↑

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