A recent effort to defend the Fifth Circuit's SCOTUS track record usefully (if unintentionally) highlights several of the most common methodological errors in efforts to marshal Supreme Court data
Federal judiciary reform shouldn’t be limited to SCOTUS.
A circuit reform I’ve been thinking about tackles appellate court gerrymandering. The number of circuits should be increased and there should be an at-large circuit, possibly comprised of a rotating body of judges from each of the circuits, to which cases meeting certain criteria could be removed.
Since all rules can be gamed, the devil’s obviously in the details: criteria for removal (case type, relief type, etc.), who gets to ask for removal (I favor the defendant to deter plaintiff forum shopping), should the at-large court sit en banc or in panel (I favor en banc), and the precedential effect of the at-large court’s rulings (I favor binding only in the originating circuit, persuasive in other to avoid the at-large court becoming a minor SCOTUS but can see arguments for binding on all), etc.
The issue isn’t just how SCOTUS rules, but what cases get there and how.
"if you’re going to vote for a result that could produce substantial disenfranchisement of eligible voters with such potential effects, you should at least explain why that result is legally required."
Is there a reasonable explanation as to why we have a system where it appears some court decisions are made without public identification of how the judge(s) voted?
Another deliberate effect is that the overwelming perverse inputs from the 5th court allows the top court to delay and schedule more important cases concerning the radical right (they should no longer be called conservative) at timings profitable for all this weird ecosystem.
Of course, an excellent analysis. But I think the analysis of reversal rates across circuits w o uld benefit from additional commentary whether the reversal or affirmative led to a conservative result
Maybe so, but given the fact that the term "conservative" no longer accurately describes the results, maybe not. The term "radical" even seems inadequate. I'm leaning towards employing the word "perverse."
Federal judges repeatedly say (brag) that federal judges are different from members of the other two branches. They explain their rulings. Judge David Tatel noted this in his excellent book.
Thank you for the highly informative analysis, and man, could we see what was coming! Rock, paper, scissors? Nah…Scythe, hatchet, scalpel did the trick quite nicely.
Seriously, this nuanced analysis helps expose how the SCOTUS can tip the scales of our Byzantine legal system.
Signed, Lucky to be a SUBscriber😉
PS -I wonder how much help Savarino had from vested interests in trying to weave the false narrative in service to National Review, Heritage Fdn, etc…
Federal judiciary reform shouldn’t be limited to SCOTUS.
A circuit reform I’ve been thinking about tackles appellate court gerrymandering. The number of circuits should be increased and there should be an at-large circuit, possibly comprised of a rotating body of judges from each of the circuits, to which cases meeting certain criteria could be removed.
Since all rules can be gamed, the devil’s obviously in the details: criteria for removal (case type, relief type, etc.), who gets to ask for removal (I favor the defendant to deter plaintiff forum shopping), should the at-large court sit en banc or in panel (I favor en banc), and the precedential effect of the at-large court’s rulings (I favor binding only in the originating circuit, persuasive in other to avoid the at-large court becoming a minor SCOTUS but can see arguments for binding on all), etc.
The issue isn’t just how SCOTUS rules, but what cases get there and how.
"if you’re going to vote for a result that could produce substantial disenfranchisement of eligible voters with such potential effects, you should at least explain why that result is legally required."
Is there a reasonable explanation as to why we have a system where it appears some court decisions are made without public identification of how the judge(s) voted?
She's a stone cold hack Steve. Full stop.
"Reading is hard." Very true, but comprehension is even harder.
Another deliberate effect is that the overwelming perverse inputs from the 5th court allows the top court to delay and schedule more important cases concerning the radical right (they should no longer be called conservative) at timings profitable for all this weird ecosystem.
I congratulate you, Professor Vladeck, on your ability to maintain such a calm and even-handed disposition in addressing such ... writings.
Of course, an excellent analysis. But I think the analysis of reversal rates across circuits w o uld benefit from additional commentary whether the reversal or affirmative led to a conservative result
Maybe so, but given the fact that the term "conservative" no longer accurately describes the results, maybe not. The term "radical" even seems inadequate. I'm leaning towards employing the word "perverse."
Federal judges repeatedly say (brag) that federal judges are different from members of the other two branches. They explain their rulings. Judge David Tatel noted this in his excellent book.
Well, that isn't quite true, is it?
Get wise the court deception in my podcast here:
https://podcasters.spotify.com/pod/show/soberchristiangentleman/episodes/S2-EP-67---The-Court-System-Deception---Truth-Training---learn-it----let-me-explain-e2nmiuq
Thank you for the highly informative analysis, and man, could we see what was coming! Rock, paper, scissors? Nah…Scythe, hatchet, scalpel did the trick quite nicely.
Seriously, this nuanced analysis helps expose how the SCOTUS can tip the scales of our Byzantine legal system.
Signed, Lucky to be a SUBscriber😉
PS -I wonder how much help Savarino had from vested interests in trying to weave the false narrative in service to National Review, Heritage Fdn, etc…