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“To Be Read Together”: Taxonomizing Companion Cases of Landmark Supreme Court Decisions

Michael Kowiak

Supreme Court “companion cases” are decisions released on the exact same day that address substantially similar legal or factual matters. The list of consequential Supreme Court decisions that the Justices have resolved as part of a set of companion cases is lengthy: It includes NLRB v. Jones & Laughlin Steel Corp., Korematsu v. United States, Brown v. Board of Education, Terry v. Ohio, Roe v. Wade, Miller v. California, and Gregg v. Georgia. Although it is not surprising that important topics like civil rights and abortion generate significant amounts of litigation, the Supreme Court’s practice of conducting plenary review of multiple similar cases and issuing separate decisions resolving each one should give us pause. The Justices have a number of other procedural tools available for disposing of similar matters for which parties seek review. Options include granting certiorari for only one of the cases, vacating and remanding some of the matters, issuing at least one summary disposition, consolidating the cases, or releasing the decisions at very different times. The Court sidesteps these alternative approaches when it issues companion cases. Yet previous scholars have not devoted adequate attention to this practice as a distinct procedural mechanism, with unique characteristics that may motivate its usage. This Note fills that gap by studying some of the Court’s most famous companion cases and taxonomizing them into four categories—coordinate hedges, contested hedges, extensional reinforcements, and applicative reinforcements—based on factors including the voting behavior of the Justices and the constitutive decisions’ relationships to each other. The Note leverages that taxonomy to frame its analysis of why the Court chose to issue companion cases given all the procedural alternatives. This Note concludes by discussing how the practice of deciding certain sorts of companion cases—in which a majority of the Justices agree that they should resolve similar cases in ostensibly contradictory ways—may improve the Court’s legitimacy by accentuating its responsibility and capacity to collaboratively identify subtle distinctions between comparable cases that compel different outcomes.

Movement Judges

Brandon Hasbrouck

Judges matter. The opinions of a few impact the lives of many. Judges romanticize their own impartiality, but apathy in the face of systems of oppression favors the status quo and clears the way for conservative agendas to take root. The lifetime appointments of federal judges, the deliberate weaponization of the bench by reactionary opponents of the New Deal and progressive social movements, and the sheer inertia of judicial self-restraint have led to the conservative capture of the courts. By contrast, empathy for the oppressed and downtrodden renders substantive justice possible and leaves room for unsuccessful litigants to accept unfavorable outcomes. But some judges—movement judges—bring more to the bench than just empathy, raging against systemic injustice with an understanding of its burdens on real human lives. This Article argues that we need movement judges to realize the abolitionist and democracy-affirming potential of the Constitution. Although the judiciary is often described as the “least democratic” of the three branches of government, it has the potential to be the most democratic. With movement judges, the judiciary can become a force for “We the People.”

The Racial Injustice and Political Process Failure of Prosecutorial Malapportionment

Michael Milov-Cordoba

District attorneys are responsible for the vast majority of criminal prosecutions in the United States, and most of them are elected by the public from prosecutorial
districts. Yet these districts are massively malapportioned, giving rural, dispropor-
tionately white voters significantly more voting power over their district attorneys
than urban voters, who are more likely to be voters of color. At the same time, our
district attorney system is characterized by the sorts of political process failures that
both triggered the Supreme Court’s Apportionment Revolution—requiring that leg-
islative and executive districts comply with one-person, one-vote—and justify judi-
cial intervention in other voting rights contexts. This Note argues that extending
one-person, one-vote to prosecutorial districts would meaningfully address
prosecutorial political process failure and have a number of salutary effects on our
democracy: It would rebalance the distribution of voters’ influence over district
attorneys, producing salutary downstream effects on our criminal justice system; it
may increase challenger rates, leading to healthier levels of prosecutorial demo-
cratic competition; and it would further core democratic norms, including respect
for the equal dignity of voters.

Weaponizing En Banc

Neal Devins, Allison Orr Larsen

The federal courts of appeals embrace the ideal that judges are committed to rule-of-law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e., collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason—and several high-profile modern examples illustrate—that today’s en banc review could be used as a weapon by whatever party has appointed the most judges on any particular circuit. A weaponized en banc reflects more than just ideological differences between judges. We define the phrase to capture a “team mentality” on the courts of appeals—an us versus them—where the judges vote in blocs aligned with the party of the President who appointed them and use en banc review to reverse panels composed of members from the other team.

In this Article, we test whether en banc review is now or has ever been weaponized. We make use of an original data set—the most comprehensive one of which we are aware—that tracks en banc decisions over six decades. Our findings are surprising in two very different ways. The bulk of our data indicates that rule-of-law norms are deeply embedded. From the 1960s through 2017, en banc review seems to have developed some sort of immunity from partisan behavior over time, and we unpack potential reasons why. But that important and long-lasting immunity could now be in danger. Our data from 2018–2020 show a dramatic and statistically significant surge in behavior consistent with the weaponizing of en banc review. It is too soon to tell whether this is a temporary change or an inflection point indicating a more permanent shift. We consider both possibilities and, in so doing, highlight the critical role that en banc review plays in ascertaining judicial commitment to rule-of-law norms. The time may soon be upon us to confront the cost of en banc review in a regime where party identity frequently trumps other judicial impulses.

When Judges and Justices Throw Out Tools: Judicial Activism in Rucho v. Common Cause

Hon. James Andrew Wynn

Madison Lecture

In this Lecture, I offer my own definition of judicial activism: In deciding a case, a court or judge engages in judicial activism when the court or judge eschews the use of a judicial decisional tool traditionally employed to adjudicate that type of case. In other words, judicial activism involves throwing a long-recognized decisional tool—or, in Justice Marshall’s words, “mediating principle[]”—out of the judicial toolkit. Under my definition, for example, the Supreme Court would engage in judicial activism if it refused without explanation to apply the doctrine of stare decisis, given that stare decisis stands at the center of the common-law tradition we inherited from England and has been applied since the earliest days of the republic.

Why does such behavior amount to judicial activism? Because refusing to apply a long-recognized mediating principle eliminates a constraint on a court’s exercise of its decisional discretion. When judges refuse to apply a long-standing interpretive tool, they necessarily expand the universe of situations in which they, in Judge Posner’s words, “bring [their] own policy preferences to bear in order to decide the case at hand.”

To be sure, there necessarily are times when judges must rely on their own policy preferences to decide a case. But, from my perspective, simply ignoring without comment a well-established mediating principle generally applicable in the type of case at issue—or justifying the act of discarding a fundamental principle by relying on a legal or policy argument as to the undesirability of that principle—is a fundamentally activist enterprise.

My Lecture will proceed as follows. First, I survey the origin of the term “judicial activism” and the various ways it has been defined by judges and scholars. Those definitions generally fall into two categories: those focused on outcomes and those focused on the process a judge applies in reaching an outcome. Second, I set forth my own definition of judicial activism—which falls into the process category—and explain why I believe that definition gives meaning to the principal concern animating accusations of judicial activism: that the judiciary is stepping outside of its proper role and unjustifiably deciding cases based on its own policy preferences. Third, I explain some means by which activism (as I define it) enters judicial decisionmaking. Finally, I apply my definition to demonstrate why the judicial interpretive methodology of textualism and the recent Supreme Court partisan gerrymandering decision, Rucho v. Common Cause, are stark examples of judicial activist behavior.

Dangerous Citations

Maggie Gardner

This Article considers when optional case citations may do more harm than good. There are valid reasons for citing to non-binding precedent—to promote consistency in the law, for example, or to avoid wasteful redundancy. But unconsidered invocations of non-binding authority may also introduce error into individual opinions and distort the path of the law over time. This Article catalogues such dangerous citations as used in particular by federal district courts citing to other federal district courts with three goals in mind: to help judges use non-binding authority constructively, to help law clerks think critically about their citation practices, and to help readers of judicial opinions question the rhetoric of constraint.

In mapping these problematic uses of non-binding authority, the Article distinguishes between poorly conceived citations and poorly implemented citations. Poorly conceived citations are those for which non-binding precedent is simply not a useful authority. Examples of poorly conceived citations include reliance on prior opinions to establish facts or the content of another sovereign’s laws. Poorly implemented citations are those for which non-binding precedent may be relevant but should be selected and applied with care. Examples of poorly implemented citations include over-extended analogies and reliance on judge-made tests that are misaligned with the question being evaluated. This catalogue of poorly conceived and poorly implemented citations surfaces some common themes, including the need for better-designed tests and the challenges posed by modern research methods. But dangerous citations are not simply a matter of inadvertence, carelessness, or mistake; they may also be deployed for rhetorical purposes, in particular to signal legitimacy and restraint. The Article thus ends with a warning against “performative judging,” or the use of excessive citations to suggest greater constraint than the law in fact provides. Such citations are dangerous not just for the error they may introduce, but also because they obscure judicial choice and the inherently discretionary nature of judging.

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