Remembering the Life and Legacy of Laurence H. Silberman – Justice Amy Coney Barrett

Posted by mmullin on Oct 2, 2023 in Per Curiam

Remembering the Life and Legacy of Laurence H. Silberman

Justice Amy Coney Barrett*

Exactly 25 years ago this year, I walked into Judge Silberman’s chambers to begin my clerkship. Like all of his law clerks, I stood in awe of his accomplishments. The accolades offered since his unexpected death have highlighted many of those: Judge Silberman was a high-ranking official in the Department of Justice, a high-ranking official in the Department of Labor, ambassador to Yugoslavia, co-chair of the Robb-Silberman Commission, and a recipient of the Presidential Medal of Freedom. And we wouldn’t be here this evening if the Judge hadn’t also served for nearly 30 years as a teacher, a job that he loved—maybe almost as much as judging.

The Wall Street Journal called Judge Silberman one of the all-time giants of the bench. They’re right. But for the moment, I’m not going to talk about his professional accomplishments. Borrowing from David Brooks, I’m going to talk about his “eulogy virtues” rather than his “resume virtues.” After all, that’s what’s important: the man who Larry Silberman was, rather than the things that Larry Silberman did. His career gave him a multitude of opportunities to show what he was made of. I have only a brief time to speak, so this isn’t going to be a comprehensive list of his wonderful traits. I’ll just hit a few of the highlights.

First is honor. The Judge often spoke about the importance of honor, and he had that in spades. A few examples: The Judge was fired as Undersecretary of Labor for two offenses—refusing to fix cases in the Labor Department for Chuck Colson and hiring a Black regional director over the objection of the Nixon White House. Another well-known incident: As Acting Attorney General, it fell to him to review the notorious Hoover files—dossiers of dirt that Hoover compiled on public figures for purposes of blackmail. Judge Silberman described it as a stomach-turning task, and he was utterly appalled by Hoover’s abuse of power. The files contained juicy information, and knowing it weighed heavily on him. It would’ve been tempting to share the information, if only to get it off of his chest. But he did not betray his professional duty of confidentiality. He took those secrets to the grave.

Another character trait is guts. It’s an understatement to say that the Judge was willing to express an unpopular opinion; indeed, he was doing that up until the very end. Just a month before he died, the Judge celebrated Constitution Day at Dartmouth with a lecture criticizing the en vogue practice of suppressing controversial speech on college campuses. Another example: Early in his tenure on the D.C. Circuit, he joined other relatively new judges in a vote to take several panel decisions en banc. That caused significant tension on the court, and a more senior colleague—whose judicial philosophy differed from Judge Silberman’s—criticized the rash of en bancs as uncollegial. Rather than digging in his heels, Judge Silberman reconsidered his position. He sent a memo changing his vote, which resulted in de-en bancing four of the cases. That came at a personal cost: Most notably, it ruptured his friendship with Robert Bork. But Judge Silberman thought it was the right thing to do, and he did it. I have heard his D.C. Circuit colleagues say that Judge Silberman’s memo helped set a tone of presumptive respect for panel decisions that went a long way toward preserving good relations on that court.

The third quality is one that I have trouble putting a name on. Some might call it bipartisanship, but that’s not really a character trait. So I’m going to say it this way: Judge Silberman’s mix of humility and confidence enabled him to work with, and love, those whose ideological commitments differed from his own. A man who lacked confidence in his positions might prefer to hunker down in an echo chamber for fear that he wouldn’t be able to survive a debate. That was not the Judge. He relished an argument. From clerk hiring to professional interactions, he welcomed a diversity of opinions. And, as the en banc episode shows, he was both open to persuasion and humble enough to change his mind. He welcomed the same diversity in his friendships. That is exemplified by his funeral service, during which both Dick Cheney, a Republican, and Merrick Garland, a Democrat, spoke. It was simultaneously beautiful and moving to see that the Judge’s closest friends were chosen without regard to whether they shared his political or ideological beliefs. Indeed, that was true of love too. When he told me that he was marrying Tricia, he said, “Now, she’s a Democrat, but that won’t get in the way.” If only we all had the same motto about political differences.

Good judgment. Here, I’m not talking about his body of judicial work—I’m talking about his ability to judge character. He was extremely skilled at sizing people up, and he could do it quickly. It took him one dance with Ricky, his first wife, to decide that he would marry her. They were happily married until her death. He asked Tricia to marry him on their second date, and their happy marriage lasted until his death. He could judge friends quickly too. He met Justice Scalia when he interviewed him for a job at Justice and, in the judge’s words “had such admiration and affection for him instantly that I . . . offered him the job.” And so began a lifelong friendship.

That leads me to loyalty. As I know that every Silberman clerk would attest, the Judge was intensely loyal. This isn’t a town in which loyalty is necessarily prized. The Judge, however, never wavered in his fidelity to clerks and friends. Speaking personally, I was so grateful to have the Judge sitting behind me at my Seventh Circuit confirmation hearing. (My hearings for the Supreme Court were closed because of the pandemic, or he would have been there too.) My Seventh Circuit hearing was my first experience as a political punching bag. When it was over, I walked out into the hall, shell-shocked. Judge Silberman, on the other hand, was exhilarated. That kind of thing got his adrenaline going, and he wanted to go over it—in the crowded hallway—blow by blow. He was so excited that I didn’t have the heart to tell him that I needed a moment to catch my breath. But he was a cheerleader, and when I felt beaten up, he gave me the boost that I needed.

Larry Silberman was a patriot. He was a man of integrity and strength. He could be fierce, as the lawyers who appeared before him discovered. But he was also affectionate and funny. Loyal to the end, he won the undying loyalty of his clerks in return. I love him and miss him—as so many others do too. I will turn it over to the panel of former clerks for further reflections on his mentorship. Thank you for the opportunity to express my respect, gratitude, and love for a truly great man.

* Associate Justice, Supreme Court of the United States. These remarks were originally presented at the Georgetown Center for the Constitution on November 17, 2022. The remarks have been formatted for publication.

Justice Alito: A Justice of Foxes and Hedgehogs – Hon. Amul Thapar

Posted by arispitzer on Apr 24, 2023 in Per Curiam

Justice Alito: A Justice of Foxes and Hedgehogs

Hon. Amul Thapar^*

The great Oxford philosopher Isaiah Berlin once proposed that all great writers fall into one of two camps. Some are hedgehogs; some are foxes.[1] Hedgehogs “relate everything to a single central vision.”[2] Foxes, on the other hand, reject grand theories. They “pursue many ends, often unrelated and even contradictory.”[3] While hedgehogs tend to see the world in black-and-white, foxes see it in shades of gray.

Although Berlin later downplayed this essay, I suspect that his logic also applies to an age-old legal dispute: the split between rules and standards.[4] Those who favor rules, like Justice Scalia, encourage judges to lay down clear rules that can be applied across cases. They are the ultimate hedgehogs. Those who prefer standards, by contrast, are foxes. They take an all-things-considered approach which balances an array of factors with close attention to the particular facts of each case. Justice Breyer is a great example. As a champion of pragmatism, Justice Breyer looks to balancing tests and multi-factor standards to resolve the case before him.

So, where does Justice Alito fall? Many would no doubt say that he’s a fox, and there is some truth to that. In many contexts, Justice Alito openly acknowledges the limits of rules and the practical value of standards.[5] Those insights reflect his reminder that “judging is not an academic pursuit” but rather a “practical activity” with often life-altering consequences for the parties before us.[6]

But I think that’s only part of the story. When it comes to the separation of powers, I submit, Justice Alito typically resembles a hedgehog. In my view, separation-of-powers cases reveal his instinctive preference for rules over standards. Yet this preference is overlooked for a simple reason: Justice Alito rarely writes on a blank slate. Unlike, say, Justice Thomas, Justice Alito tends to take a thicker view of stare decisis. So, operating within the constraints of precedent, Justice Alito routinely refines the Supreme Court’s caselaw in ways that make it both more coherent and more predictable—in other words, more hospitable for hedgehogs.

* * *

When it comes to our Constitution, structure is king. The Bill of Rights is, of course, a rich guarantee of our most basic rights. But without structural limits on governmental power, each of its cherished rights would be little more than words on a page. Our Founders understood this. They knew firsthand the abuse that flows from the unchecked consolidation of power in the hands of one actor. For that reason, they made structural limits the cornerstone of our constitutional charter.[7] First, they divided powers between the federal government and the states. But they also divided powers within the federal government: the legislative power went to Congress, the executive to the President, and the judicial to the courts.

I can think of at least three reasons why rules are especially attractive for cases dealing with the separation of these powers. First, rules are more likely to restrain judicial overreach. The Founders understood that we should always expect government actors to expand their powers. And judges were no different. Indeed, for the Anti-Federalists—the leading critics of our constitutional order—the danger of kritarchy (rule by judges) loomed large. Brutus warned that “the supreme court under this constitution would be exalted above all other power in the government, and subject to no controul.”[8] He reasoned that judicial review and lifetime tenure were a dangerous mix:

There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.[9]

Although much has changed since the Founding, human nature has not. So, judges would do well to remember that, like other officials, we are not “angels.”[10] We must always scrutinize our decisions to ensure that we do not succumb to the temptation to wrest power from the political branches. Rules reduce that risk.[11]

Rules also enhance the public’s perception of our judicial system as impartial and incorruptible—no small matter when our decisions are backed by neither the sword nor the purse.[12] Too many Americans today think that judges act as faithful agents of one political party or the other. This skepticism would hardly be assuaged if the Court handed down a decision on Tuesday that distinguished a case decided on Monday by reasoning, “Well, Monday’s case featured four factors while today’s involves four factors plus one.” By contrast, it’s hard to think of a better advertisement for the rule of law than the Court’s articulation of a clear rule in one case that it sticks to in subsequent cases—no matter the parties or issues before them.

And there’s another reason bright-line rules are valuable in the separation-of-powers context. Judicial decisions in this arena tend to have lasting consequences. Whether we are resolving disputes between dueling sovereigns or between coordinate branches of the federal government, we are deciding how our government operates. Too often, this truth is forgotten. Journalists and court-watchers scour Supreme Court opinions like box scores, trying to figure out who’s up and who’s down. But that’s not the role of a judge. And rules remind us to think not just about the case before us today, but the cases that’ll come down years from now, when the facts might be different and the shoe on the other foot.

Justice Alito put this point nicely in a recent case. In Trump v. Vance, an elected state prosecutor in New York launched a criminal investigation of the sitting President.[13] As part of this investigation, the prosecutor sought to subpoena the President’s private records.[14] This was unprecedented. As Justice Alito lamented at the outset of his powerful dissent, the Court’s decision was “almost certain to be portrayed as a case about the current President and the current political situation.”[15] And true enough, that is how the media characterized it. But most people didn’t fully appreciate that the Court’s decision was not a ticket good for one ride only. As Justice Alito noted, Vance’s holding “will also affect all future Presidents—which is to say, it will affect the Presidency, and that is a matter of great and lasting importance to the Nation.”[16]

Insights like these pervade Justice Alito’s jurisprudence. And once we see things through this lens, we better understand his leading opinions on the separation of powers.

* * *

Justice Alito’s separation-of-powers jurisprudence rests on a recognition that the judge’s role is a limited one. His majority opinion in Hernandez v. Mesa embodies this judicial humility.[17] Hernandez also demonstrates his skill in disciplining doctrines that previously relied on nebulous standards.

To illustrate this point, however, it’s important to take a few steps back. Start with hornbook law. Federal courts “are not roving commissions”[18] tasked with writing and updating our laws; that is Congress’s job. With few exceptions, Congress must give plaintiffs the authority to come to court.[19] In the language of law, that means a plaintiff must have a cause of action.

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, however, the Supreme Court broke new ground.[20] There, the Burger Court found for the first time that the Fourth Amendment supplied a cause of action for money damages when federal agents allegedly violate the Amendment.[21] The Burger Court then stretched Bivens’s logic, expanding its reach to cover violations of the Fifth Amendment’s Due Process Clause and the Eighth Amendment’s bar on cruel and unusual punishment.[22] At the time, it appeared the Court would continue expanding Bivens until Bivens “became the substantial equivalent of 42 U.S.C. § 1983.”[23]

But allowing courts to find implied causes of action shifts significant power to the federal judiciary—power that the Founders intended would rest in the elected branches.[24] Co-opting this power created problems. After all, any “decision to recognize a damages remedy requires an assessment of its impact on governmental operations systemwide.”[25] So any attempt at crafting the optimal liability regime must reckon with “a number of economic and governmental concerns” that are not easy to discern.[26] For instance, if an alleged constitutional violation flows from a complex law enforcement operation, which officers should bear the brunt of the liability? What mens rea standard should attach? And how will the projected costs and consequences of litigation be scored against their benefits? These are hard questions that can be answered only after balancing multiple factors against each other. And it is imperative that courts making these judgment calls get the balance exactly right. Unlike garden-variety state tort damages, the availability of a federal constitutional remedy can’t be undone by legislation. Once the courts have extended Bivens, we all must live with it.

In Hernandez, the Court was invited to expand Bivens once more, and the facts of that case made the invitation all the more alluring.[27] Sergio Adrián Hernández Güereca, a fifteen-year-old boy in Mexico, was playing with his friends near the border.[28] While they were playing, Jesus Mesa, Jr., a border patrol officer on American soil, shot and killed Hernández.[29] Citing Bivens, Hernández’s parents brought a damages suit alleging that Mesa had violated their son’s Fourth and Fifth Amendment rights.

Writing for the majority, Justice Alito declined the plaintiffs’ invitations to extend Bivens. In reaching this conclusion, Justice Alito did not merely rely on the judiciary’s institutional limitations—though those considerations are an important part of the opinion. Instead, he began with the basics. While the Court had previously recognized implied causes of action, Justice Alito declared that those decisions did not adequately consider “the tension between this practice and the Constitution’s separation of legislative and judicial power.”[30] Put aside whether judges would be good at figuring out the appropriate liability regime. For Justice Alito, the Constitution answered this question. Our constitutional charter channels the legislative power to Congress while “this Court and the lower federal courts . . . have only ‘judicial Power.’”[31] And the essence of lawmaking entails “balancing interests and often demands compromise.”[32] We risk upsetting these delicate balances when we infer a cause of action from statutory silence. And worst of all, we’d be straying out of our lane. As Justice Alito notes, in the post-Erie world, “a federal court’s authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress[].”[33] In other words, unless and until Congress creates a federal-officer analog for § 1983, we should handle Bivens claims with “caution.”[34]

These first-order principles also explain the Court’s exacting test for expanding Bivens. In Hernandez, Justice Alito signaled in no uncertain terms that lower courts should rarely, if ever, find the expansion of Bivens justified. Under Bivens, judges must ask two questions when deciding whether a cause of action exists. First, we ask whether the claim arises in a new context.[35] It’s not enough that the plaintiff points to the same constitutional provisions as those that have already grounded prior Bivens claims. Instead, we must ask whether this case is “meaningfully different.”[36] In finding that the facts of Hernandez arose in a new context, Justice Alito made it clear that the context is new if it differs in virtually any way from the Court’s previous Bivens decisions.

Then, we move to the second step—where the bulk of the analytical work is done. There, we “ask whether there are factors that counsel hesitation” before we engage in the “‘disfavored’ judicial activity” of extending Bivens.[37] And the reasons are many. In Hernandez, Justice Alito offered three such factors. First, judges must be doubly cautious before creating a Bivens remedy that intrudes on the political branches’ primacy in the realm of foreign affairs.[38] Second, Hernández’s claims implicated national security issues because border patrol agents defend our Nation against illegal immigration and trafficking.[39] Last, Justice Alito pointed to multiple statutes where “Congress has repeatedly declined to authorize the award of damages for injury inflicted outside our borders.”[40] Congress’s general pattern of limiting damages actions for injury inflicted abroad by government officials gave Justice Alito “further reason to hesitate about extending Bivens.”[41]

While Hernandez featured an array of factors that cut against recognizing a Bivens action, they all derived from a recognition of the judge’s modest role. Indeed, perhaps the entire second step of the Bivens inquiry can be reduced to a single question: “‘[W]ho should decide’ whether to provide for a damages remedy, Congress or the courts?”[42] And by Justice Alito’s lights, it’s hard to ever see when the answer would not be Congress.

* * *

Justice Alito’s opinion for the Court in Murphy v. NCAA also reveals his preference for bright-line rules.[43] This time, however, these principles cashed out in favor of the states rather than Congress. Murphy is also noteworthy because it shows how bright-line rules can be more administrable while also resolving doctrinal confusion.

In Murphy, the Court confronted the constitutionality of the Professional and Amateur Sports Protection Act (PASPA). PASPA made it unlawful for a state “to sponsor, operate, advertise, promote, license, or authorize by law” a sports-gambling scheme.[44]

New Jersey took issue with this and passed a law authorizing sports gambling in the Garden State. Neither the NCAA nor various professional sports leagues were happy with this. So, they sued to enjoin New Jersey’s law.[45]

The dispute invoked two constitutional doctrines. The first was preemption. Under the Supremacy Clause, federal law is superior to state law. Preemption simply requires state and federal judges to apply federal law rather than state law when the two conflict. The second was the anticommandeering doctrine. Though it sounds in deep-rooted principles of federalism, the doctrine emerged with New York v. United States and Printz v. United States, a pair of prominent Rehnquist Court decisions.[46] In New York, the Court struck down a federal law that required the states to either regulate the disposal of nuclear waste in line with federal standards or “take title” themselves.[47] Likewise, in Printz, the Court encountered a congressional statute requiring state and local law enforcement officials to perform background checks for prospective gun sales.[48] In striking down the law, the Court held that the federal government could not command the state’s officers to administer or enforce a federal regulatory program.[49] Taken together, these cases stand for the simple principle that states set state policy while the federal government sets federal policy.

Yet in the years leading up to Murphy, the two doctrines—preemption and anticommandeering—did not coexist easily.[50] Each threatened to swallow the other.[51] Many prominent scholars, however, reconciled these doctrines by taking a dim view of the anticommandeering doctrine.[52] On their view, the anticommandeering doctrine applies when Congress commands the states to affirmatively do something. By contrast, Congress’s preemption authority controls when it prohibits the states from doing something. As fans of federal supremacy, these scholars championed the affirmative-negative distinction on the ground that preemption would be a dead letter if the Constitution barred Congress from telling the states what they couldn’t do.

The NCAA’s two arguments in Murphy reflected this conventional wisdom. First, they defended PASPA as a preemption provision grounded in the Supremacy Clause. And second, they noted that PASPA did not require the states to lift a finger. In this regard, PASPA was unlike the statutes at issue in Printz and New York. Simply put, the case boiled down to a referendum on the affirmative/negative distinction for anticommandeering purposes. To be sure, this distinction promised simplicity at first glance. And it seemed like a bright-line rule. But writing for the Court, Justice Alito rejected this distinction.[53]

Why? Because a positive command can easily be rewritten in negative form. For instance, the affirmative command, “Do not repeal,” can be readily repackaged as a prohibition: “Repeal is prohibited.”[54] It was a mere “happenstance that the laws challenged in New York and Printz commanded ‘affirmative’ action as opposed to imposing a prohibition.”[55] Any test that would allow Congress to sidestep the Constitution’s prohibition against commandeering was no workable test at all. In two short lines describing PASPA, Justice Alito cut to the heart of why the affirmative-negative distinction cannot work: “It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.”[56]

Justice Alito found a brighter, more workable rule. And just like in Hernandez, Justice Alito reasoned from constitutional text and history. Under our Constitution, Congress’s legislative powers are limited. Thus, Congress can only exercise legislative power after it identifies the constitutional source of its authority. PASPA ran into the shoals for two related reasons. First, as Justice Alito noted, the Supremacy Clause is not an independent fount of legislative power for Congress. It is instead only a “rule of decision” for courts to apply after encountering conflicting state and federal laws.[57] And second, the Constitution only “confers upon Congress the power to regulate individuals, not States.”[58] Putting these steps together, Justice Alito announced that the appropriate distinction is between federal laws that regulate the people directly and federal laws that regulate the state’s regulation of the people. The former can constitutionally preempt state law while the latter is unconstitutional.

Justice Alito’s new test squared preemption with anticommandeering. The opinion also displays a keen appreciation for how the law interacts with real-world incentives. More specifically, Justice Alito makes two points in favor of a robust anticommandeering doctrine. First, the doctrine furthers political accountability.[59] When Congress directly regulates an area, it bears total responsibility for the regulation’s benefits and burdens. That enables voters to know who to blame (or praise) for the regulation’s consequences. By contrast, if a State imposes a regulation only under Congress’s command, then “responsibility is blurred.”[60] A confused voter might understandably, yet unfairly, hold his state representatives accountable for policies that Congress concocted. And savvy politicians would surely exploit such ambiguities.[61] Second, the anticommandeering doctrine prevents federal overreach. When Congress directly implements a policy, it must tally its benefits against the costs of enforcement and administration. And the prospect of these costs constrains Congress. But absent an anticommandeering doctrine, Congress could skip past this limit by enlisting the states to administer and enforce a law in place of the federal government.[62] Indeed, Justice Alito found it “revealing that the Congressional Budget Office estimated that PASPA would impose ‘no cost’ on the Federal Government.”[63] In other words, without the separation of powers, Congress could run up the tab on today’s fashionable policy proposals while requiring the states to pay the bill tomorrow.

* * *

In most separation-of-powers cases, the Justices do not approach the issue in a vacuum. Instead, they inherit precedent. In that sense, Ortiz v. United States was a rare exception.[64] So I don’t think it’s a coincidence that Ortiz also offers one of the most vivid examples of Justice Alito’s preference for rules over standards in structural cases.

Like many defendants each year, Keanu Ortiz was convicted for possessing and distributing child pornography.[65] But here there was a twist: Ortiz’s trial didn’t take place in a federal civilian court. Instead, until he reached the Supreme Court, Ortiz’s case was tried by a court-martial. A panel of the Air Force Court of Criminal Appeals affirmed his conviction and so did the Court of Appeals for the Armed Forces (CAAF).[66] Across these proceedings, Ortiz brought several statutory and constitutional challenges to his conviction that are not relevant here.

Instead, when Ortiz’s appeal reached the Supreme Court, Justice Alito homed in on a more fundamental question. Did the Supreme Court even have jurisdiction to hear Ortiz’s appeal? And that question—first raised by Professor Aditya Bamzai in a brilliant amicus brief—was a “new one” for the Justices.[67] The Court had “previously reviewed nine CAAF decisions without anyone objecting that [it] lacked the power to do so.”[68]

To understand the problem, let’s start with the basics. There are two paths to the Supreme Court. First, a small set of cases qualify under the Court’s original jurisdiction. Every other case must invoke the Court’s appellate jurisdiction. And under Supreme Court precedent, Article III’s grant of appellate jurisdiction only empowers the Court to hear appeals from a tribunal that exercises the “judicial power.” All agreed on this point. But which entities exercise judicial power? Some examples readily come to mind. When the Sixth Circuit decides a case, for example, the Court has appellate jurisdiction to review our decision. That’s true for state courts too.[69] In Ortiz, the Court had to decide whether the same holds true for the military-tribunal system.

The majority found jurisdiction after considering “the judicial character and constitutional pedigree of the court-martial system.”[70] The Court took a functionalist path to reaching this conclusion. In particular, the Court noted the similarities between the federal courts and the military justice system. Governed by the same body of federal law, the military tribunals already afforded service members “virtually the same” procedural protections as those that defendants typically enjoy in federal and state courts.[71] For those reasons, the Court has long held that the “valid, final judgments of military courts, like those of any court of competent jurisdiction[,] have res judicata effect and preclude further litigation of the merits.”[72] Indeed, “the jurisdiction of [military] tribunals overlaps significantly with the criminal jurisdiction of federal and state courts.”[73] And the comparisons between the military courts and their civilian counterparts extend to sentence ranges and multiple layers of appellate review.

The Court’s logic seems reasonable. After all, if you “see a bird that walks, swims, and quacks like a duck, you call that bird a duck.”[74] Surely the same rationale can apply to determining what entities wield the judicial power. But Justice Alito didn’t agree. Instead, he relied on the Constitution’s text and structure. Since the Founding, military tribunals “have always been understood to be Executive Branch entities that help the President.”[75] But if the military courts are part of the Executive Branch—a point no one disputed—then how could they exercise the judicial power? After all, “Article III of the Constitution vests ‘[t]he judicial Power of the United States’—every single drop of it—in ‘one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.’”[76] And for Justice Alito, the federal judicial power can be exercised only by “tribunals whose judges have life tenure and salary protection.”[77]

This categorical rule has obvious merits. For starters, it’s easily administrable. The majority’s test, by contrast, invites difficult line-drawing questions. For instance, could Congress provide for direct Supreme Court review of garden-variety administrative agency decisions from, say, the Social Security Agency? Would that depend on the panoply of procedural rights available to parties in the administrative hearing? And if that’s true, couldn’t Congress overwhelm the Supreme Court by requiring the Justices hear every single appeal that arises from the constellation of non-Article III tribunals that already exist?

Besides workability, Justice Alito’s argument also sounds in the internal logic of separation of powers. As judges, we do not, of course, have the purse or the sword at our disposal. But the Constitution does impose one requirement and two privileges on the judicial branch. We can only be appointed after both presidential nomination and Senate confirmation. In return, we are granted life tenure and salary protections. We should not underestimate the importance of these designs. The Founders expected them to ensure judicial independence and impartiality. Thus, it would make sense if federal judges were the only federal officials tasked with exercising the judicial power to say what the law is. Or as Professor David Currie put it, “The tenure and salary provisions of Article III can accomplish their evident purpose only if they are read to forbid the vesting of the functions within its purview in persons not enjoying those protections.”[78]

* * *

Consider another example. In recent years, few areas of law have seen as much renewed focus as the unitary executive theory of presidential power.[79] The idea is simple. As then-Judge Alito explained it, the unitary executive theory posits “that all federal executive power is vested by the Constitution in the President.”[80] And like other defenders of the theory, then-Judge Alito argued that the unitary executive model “best captures the meaning of the Constitution’s text and structure.”[81]

Indeed, the words of Article II alone seem all but dispositive. The Vesting Clause makes clear that “[t]he executive [p]ower shall be vested in a President of the United States.”[82] Meanwhile, the Take Care Clause entrusts the President with the duty to “take [c]are that the [l]aws be faithfully executed.”[83] Taken together, this language tells us that the President is ultimately responsible for everything that takes place within the Executive Branch. To be sure, as Justice Alito explained in his confirmation hearings, the unitary executive theory does not scope the metes and bounds of executive power. But it does tell us that any power which falls within the executive’s prerogative must be under the Commander-in-Chief’s control.

This has important implications in the officer-removal context in particular. Advocates of the unitary executive theory have long bristled at Humphrey’s Executor v. United States.[84] In Humphrey’s Executor, the Court blessed Congress’s ability to impose statutory restrictions on the President’s power to remove policymakers at the helm of so-called independent agencies. For many unitary executive theorists, this doctrine represents a “serious, ongoing threat” that “subverts political accountability and threatens individual liberty.”[85]

In a series of cases, the Court has pared back Congress’s ability to insulate executive officers from presidential removal. In both Free Enterprise and Seila Law, Justice Alito joined the majority in refusing to extend Humphrey’s Executor to new contexts.[86] In Collins v. Yellen, the latest in this series, Justice Alito wrote the majority.[87] And the shift from Seila Law to Collins illuminates Justice Alito’s ability to discipline doctrine by minimizing ambiguities.  

In Seila Law, the Court invalided a law limiting the President’s authority to remove the director of the Consumer Financial Protection Bureau (CFPB). The CFPB emerged from the Great Recession with the mandate to combat “unfair, deceptive, or abusive” acts and practices in consumer finance.[88] Congress intended the CFPB to operate as an independent agency like the agencies the Court blessed in Humphrey’s Executor. But the CFPB differed from the agencies at issue in Humphrey’s Executor in one important respect. While most independent agencies are led by multimember commissions or boards, the CFPB was headed by a single official. Appointed by the President and confirmed by the Senate, that official serves a five-year term. Congress also ensured that the CFPB would be provided with an independent source of funding that circumvented the typical appropriations process.[89] In short, “Congress deviated from the structure of nearly every other independent administrative agency” in the nation’s history.[90]

The Seila Law Court recognized “[t]he entire ‘executive Power’ belongs to the President alone.”[91] And the President’s removal power flows from Article II’s text. If it is the President who ultimately bears responsibility to enforce the laws, then surely the President must have the power to remove executive officials that do not represent him. Anything else would allow executive officials to flout the President’s wishes. That could cripple the Presidency. “Without [removal] power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.”[92]

Though the Court embraced the unitary executive theory in Seila Law, the decision was narrow. Rather than strike down Humphrey’s Executor, the Court only declined to extend it to reach the “new situation” of “an independent agency led by a single Director and vested with significant executive power.”[93] In other words, there was a “standing athwart history, yelling [s]top” element to the decision. It also raised the question of when an agency wields “significant executive power.” In some instances, like the CFPB, the answer is self-evident. But one can imagine the difficulties lower courts would have in figuring out which agencies only exert “insignificant” executive power.

Fortunately, Justice Alito clarified the doctrine a year later. In Collins, the question was whether the Director of the Federal Housing Finance Agency (FHFA) could only be removed by the President for cause. The Court-appointed amicus sought to distinguish Seila Law by, among other things, contending that the FHFA’s authority was more circumscribed than the CFPB’s. More specifically, the amicus pointed out that the FHFA administers only one statute while the CFPB administered nineteen. Similarly, the CFPB directly regulates millions of individuals and businesses while the FHFA regulates a small number of government-sponsored enterprises.[94]

But Justice Alito discarded the “significance” inquiry. Writing for the majority, he noted that the President’s removal power is not a sliding scale that adjusts with the “the nature and breadth of an agency’s authority.”[95] Congress acts unconstitutionally when it insulates an agency head from the President’s control irrespective of the agency’s size or functions. The Constitution does not countenance structural violations simply because they could have been worse. Moreover, he highlighted the “severe practical problems” that would arise from requiring courts to discern which agencies are important and which agencies can fall by the constitutional wayside.[96] The FHFA’s comparison with the CFPB is illustrative. While the amicus made credible arguments that the CFPB is more influential, Justice Alito identified several arguments that cut in the other direction.[97]

Once again, Justice Alito justified his favored rule by recognizing its accountability benefits. Justice Alito emphasized that the President, unlike agency officials, is elected.[98] This point might seem obvious. But it has important implications. Without presidential control, the executive branch bureaucracy could run amok with minimal oversight from anyone accountable to the voters.

Put these cases together and we see that Justice Alito clarifies every area of the law that reaches his desk. We also see his penchant for rules over standards most clearly when he writes separately or in dissent. Of course, Justice Alito does not devise these rules in a vacuum. Nor do they flow from his policy views. Instead, he is a methodological pluralist. He begins with the Constitution’s text, history, and structure. And he stops there too when the answer is definite. But he is also able to weave these first principles with the precedent he inherits.

* * *

Justice Alito’s favor for rules is not absolute. Ever the humble Justice, he recognizes that sometimes the law forces courts to reject bright-line rule. That’s particularly true when the proposed rule would transfer power from properly accountable bodies to the federal courts. For example, Brnovich v. DNC, featured a challenge to two neutral Arizona laws—(1) the out-of-precinct policy and (2) a prohibition on third-party ballot collection.[99] Along with a host of constitutional claims, the plaintiffs alleged that the laws’ disparate impact on minority voters violated section 2 of the Voting Rights Act (VRA). Brnovich marked the first guidance that the Court had issued on how we should assess the incidental burdens of facially neutral time, place, or manner voting regulations under section 2 of the VRA.

Section 2(a) of the VRA, as amended in 1982, prohibits states from passing laws “in a manner which results in a denial or abridgment of the right . . . to vote on account of race or color.”[100] And its neighboring provision tells us what must be shown to prove a violation. It requires consideration of “the totality of circumstances” in each case and demands proof that the State’s political processes are not equally open to participation by members of a protected class.[101]

This provision has been the source of endless confusion and litigation in voter-dilution cases. Indeed, in Thornburg v. Gingles, the leading case, the Court threw out at least nine famously open-ended factors for judges and litigants to squabble over.[102]

But Justice Alito did not blindly follow the approach set out in Gingles. Instead, he began at the ground floor by asking what the text meant at the time of the statute’s enactment. Brnovich is an excellent example of what Professor John McGinnis calls “a statutory analogue to originalism.”[103] Along with employing the traditional tools of textualism, Justice Alito keyed in on the VRA’s statutory history, historical context, and expected applications to ascertain Section 2’s meaning.

After tilling these fields, Justice Alito concluded that the statute aimed at ensuring that a state’s political processes must be “equally open to minority and non-minority groups alike.”[104] But Justice Alito did not create a bright-line rule for courts to use in determining when a facially neutral election regulation remains “equally open” for all Americans.[105] He made that clear at the outset after disclosing that the Court had received at least ten proposed tests for how to implement section 2’s imprecise language from the parties and amici.[106]

Instead, to inform future cases, Justice Alito announced a standard employing five guideposts—each of which “stem[med] from the statutory text”[107]: (1) the size of the burden on voters beyond mere inconvenience; (2) the law’s departure from “standard practice when the statute was amended in 1982”; (3) the size of the disparity; (4) the alternative means of voting other than the one burdened by the challenged policy; and (5) the State’s interest in promulgating the challenged policy.[108]

Three insights from Brnovich are worth singling out. First, this is an example of how Justice Alito does not blindly pursue rules for their own sake. If the Court was looking for a bright-line rule to adopt in Brnovich, there were plenty to choose from. Indeed, as he noted, the various parties and amici had proposed no fewer than ten tests for resolving such cases. But Justice Alito declined to choose a winner among them as this case was the Court’s “first foray into the area.”[109] This prudence is understandable. The stakes for picking the right rule in this domain were extraordinarily high. One notable test, for example, would have required the State to run the gauntlet of strict scrutiny for every neutral voting regulation that imposes a disparate burden on certain voting populations. Its adoption would likely have led to the invalidation of hundreds of state laws that would have been considered noncontroversial the day the 1982 amendment to the VRA had been passed. What’s more, the statute expressly calls on courts to consider the “totality of circumstances.”[110] That language directs courts to make holistic calls that turn on multiple considerations—that is, it calls for a standard rather than a rule. Justice Alito heeded that statutory instruction.

Second, Justice Alito looks to historical context and common sense as backstops to discipline his textual analysis. The portion of the VRA at issue in Brnovich is not a model of legislative clarity. And reasonable minds can read its provisions broadly. But when analyzing today’s regulations, we would be wise to compare them to the standard practices in 1982 when Congress made the relevant amendments to the VRA. After all, it’s unlikely that “Congress intended to uproot facially neutral time, place, and manner regulations that have a long pedigree or are in widespread use in the United States.”[111] This logic is a bedrock principle of statutory interpretation and the separation of powers. We respect Congress when we assume that it does not intend to upend existing regulatory schemes using only vague terms. In other words, we don’t expect Congress to hide elephants in mouseholes.

Third, Brnovich is a model of judicial humility in our federalist system. Election regulation is one of the State’s core prerogatives.[112] Federal judges must be cautious before we wrest this power from state officials through hawkish oversight, especially where Congress has not clearly instructed that we do so. That does not mean we should grant the states knee-jerk deference, of course. But it does mean taking the State’s interests seriously. Justice Alito did just that in Brnovich. In defending its laws, Arizona invoked its interest in preventing electoral fraud and preserving the perceived legitimacy of its elections. These are entirely legitimate interests. Indeed, given that elections are the lifeblood of a democracy, those interests may be among the State’s most important. The Ninth Circuit thought otherwise “in large part because there was no evidence that fraud in connection with early ballots had occurred in Arizona.”[113] But election fraud has a storied history in American political life. So, as Justice Alito recognized, every State has a right to learn from history and take necessary prophylactic steps. And those State interests rightly fall within the “totality of circumstances” to be considered under section 2 of the VRA.

* * *

Yale historian John Lewis Gaddis, a keen student of grand strategy, suggests that great statesmen couple the hedgehog’s sense of direction with the fox’s sensitivity to surroundings.[114] Justice Alito’s greatness as a jurist could be described in similar terms. And this blend is often on show when Justice Alito writes in a separation-of-powers case. The Constitution’s text, history, and structure are his touchstones. But Justice Alito’s mastery of doctrine and keen sensitivity for how the law operates on the ground allows him to repair one area of neglected doctrine after another. Hedgehogs and foxes alike have much to learn from his opinions.

And for all this and much more, we are his beneficiaries.

^* Judge, United States Court of Appeals for the Sixth Circuit.

[2] John Lewis Gaddis, On Grand Strategy 4 (2018).

[3] Id.

[4] There is a longstanding debate about whether legal doctrines should cash out as rules or standards. There are merits to both approaches in particular settings. But I should put my biases on the table. I tend to stand with Justice Scalia—a pretty good place to stand—in favoring rules. As a lower-court judge, I know firsthand that rules are usually much easier to apply than standards. Rules can also ensure that law is applied in an evenhanded and predictable manner. At the same time, however, I know that every judge, no matter where their sympathies lie, will invariably be forced to employ both rules and standards. That is our lot in life. Even Justice Scalia—never one to shy from a fight—recognized that “[w]e will have totality of the circumstances tests and balancing modes of analysis with us forever.” Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1187 (1989); see Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 22 (1992).

[5] See Steven Menashi, The Prudent Judge, 2023 Harv. J.L. & Pub. Pol’y Per Curiam 16 (2023); Andrew Oldham, Justice Alito on Criminal Procedure, 2023 Harv. J.L. & Pub. Pol’y Per Curiam 19 (2023); Kate Stith, Justice Alito on Criminal Law, 2023 Harv. J.L. & Pub. Pol’y Per Curiam 18 (2023).

[6] Samuel A. Alito, Jr., Associate Justice, U.S. Sup. Ct., Manhattan Institute Walter B. Wriston Lecture: Let Judges Be Judges (Oct. 13, 2010).

[7] See, e.g., Bowsher v. Synar, 478 U.S. 714, 722 (1986) (“Even a cursory examination of the Constitution reveals . . . that checks and balances were the foundation of a structure of government that would protect liberty.”).

[8] Brutus, XV, in 2 The Complete Anti-Federalist 437–38 (Herbert J. Storing ed., 1981).

[9] Id. at 438.

[10] The Federalist No. 51, at 349 (James Madison) (Jacob E. Cooke ed., 1961).

[11] See John F. Manning, Justice Scalia and the Idea of Judicial Restraint, 115 Mich. L. Rev. 747 (2017).

[12] The Federalist No. 78, at 523 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

[13] 140 S. Ct. 2412, 2420 (2020).

[14] Id. at 2429.

[15] Id. at 2439 (Alito, J., dissenting).

[16] Id.

[17] 140 S. Ct. 735 (2020).

[18] Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973).

[19] See, e.g., Davis v. Passman, 442 U.S. 228, 239 (1979); Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,

128 (2014).

[20] 403 U.S. 388 (1971).

[21] Id. at 389.

[22] See, e.g., Davis, 442 U.S. at 228 (holding that Fifth Amendment violations confer a cause of action and money damages);

Carlson v. Green, 446 U.S. 14 (1980) (holding that Bivens does not foreclose actions for money damages under the Eighth

Amendment).

[23] Andrew Kent, Are Damages Different?: Bivens and National Security, 87 S. Cal. L. Rev. 1123, 1139 (2014).

[24] See Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017) (citation omitted).

[25] Id. at 1858.

[26] Id. at 1856.

[27] See Hernandez v. Mesa, 140 S. Ct. 735, 740 (2020).

[28] Id. at 740.

[29] Id.

[30] Id. at 741.

[31] Id. (quoting U.S. Const. art. III, § 1).

[32] Id. at 742.

[33] Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020).

[34] Id. One other option, of course, was to go all the way and overturn Bivens. And that’s what Justice Thomas called for in a concurrence joined by Justice Gorsuch. Id. at 750 (Thomas, J., concurring). But in writing for the majority, Justice Alito limited Bivens’s reach while providing judicially manageable instructions for lower courts and litigants.

[35] Id. at 743.

[36] Id. at 743–44.

[37] Id. at 742–44 (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017)).

[38] Id. at 744.

[39] Hernandez v. Mesa, 140 S. Ct. 735, 746 (2020).

[40] Id. at 747.

[41] Id. at 749.

[42] Id. at 750 (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017)).

[43] 138 S. Ct. 1461 (2018).

[44] Id. at 1470 (quoting 28 U.S.C. § 3702(1) (2012)).

[45] Id. at 1471.

[46] New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997).

[47] 505 U.S. at 153.

[48] 521 U.S. at 902.

[49] Id. at 925–26.

[50] See generally Edward A. Hartnett, Distinguishing Permissible Preemption from Unconstitutional Commandeering, 96 Notre Dame L. Rev. 351 (2020).

[51] See id. at 356.

[52] See Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz, and Yeskey, 1998 Sup. Ct. Rev. 71, 89–94 (1999); Mark Tushnet, Globalization and Federalism in a Post-Printz World, 36 Tulsa L.J. 11, 27–28 (2000); see also City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999).

[53] Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018).

[54] Id. at 1472.

[55] Id. at 1478.

[56] Id.

[57] Id. at 1479 (quoting Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 324 (2015)).

[58] Id. (quoting New York v. United States, 505 U.S. 144, 166 (1992)).

[59] Murphy v. NCAA, 138 S. Ct. 1461, 1477 (2018).

[60] Id.

[61] Id.

[62] Id.

[63] Id. at 1484.

[64] 138 S. Ct. 2165 (2018).

[65] Id. at 2167.

[66] Id. at 2171–72.

[67] Id. at 2173.

[68] Id.

[69] See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816).

[70] Ortiz v. United States, 138 S. Ct. 2165, 2173 (2018).

[71] Id. at 2174 (quoting 1 David A. Schlueter, Military Criminal Justice: Practice and Procedure §§ 1–7, at 50 (LexisNexis, 9th ed. 2015)).

[72] Id. (alteration in original) (quoting Schlesinger v. Councilman, 420 U.S. 738, 746 (1975)).

[73] Id. at 2174–75.

[74] Ortiz v. United States, 132 Harv. L. Rev. 317, 317 (2018).

[75] Ortiz, 138 S. Ct. at 2190 (Alito, J., dissenting).

[76] Ortiz v. United States, 138 S. Ct. 2165, 2190 (2018) (quoting U.S. Const. art. III, § 1).

[77] Id.

[78] David Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, at 121 (1985).

[79] See, e.g., Free Enter. Fund v. Public Co. Acct. Oversight Bd., 561 U.S. 477 (2010).

[80] John Harrison, The Unitary Executive and the Scope of Executive Power, 126 Yale L.J.F. 374, 374 n.1 (2017).

[81] Id.

[82] U.S. Const. art. II, § 1, cl. 1.

[83] Id. § 3.

[84] 295 U.S. 602 (1935).

[85] Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2219 (2020) (Thomas, J., concurring in part and dissenting

in part).

[86] See id. at 2183; Free Enter. Fund v. Public Co. Acct. Oversight Bd., 561 U.S. 477 (2010).

[87] See 141 S. Ct. 1761 (2021).

[88] Seila Law LLC, 140 S. Ct. at 2193 (quoting 12 U.S.C. § 5536(a)(1)(B) (2018)).

[89] See id. at 2191–94.

[90] Id. at 2191.

[91] Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2197 (2020) (quoting U.S. Const. art. II, § 1, cl. 1).

[92] Id. at 2191 (quoting Free Enter. Fund v. Public Co. Acct. Oversight Bd., 561 U.S. 477, 514 (2010)).

[93] Id. at 2201 (quoting Free Enter. Fund, 561 U.S. at 483).

[94] Collins v. Yellen, 141 S. Ct. 1761, 1784 (2021).

[95] Id.

[96] Id.

[97] Id. at 1784–85.

[98] Id. at 1784.

[99] Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321 (2021).

[100] 52 U.S.C. § 10301(a) (2018).

[101] Id. § 10301(b).

[102] 478 U.S. 30, 36–37 (1986).

[103] John McGinnis, The Contextual Textualism of Justice Alito, 2023 Harv. J.L. & Pub. Pol’y Per Curiam 14, *2 (2023).

[104] Brnovich, 141 S. Ct. at 2337 (quoting § 10301(b)).

[105] Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2337 (2021) (quoting § 10301(b)).

[106] Id. at 2336.

[107] Id. at 2342.

[108] Id. at 2338–40.

[109] Id. at 2336.

[110] 52 U.S.C. § 10301(b) (2018).

[111] Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2339 (2021).

[112] Michael T. Morley, The Independent State Legislature Doctrine, 90 Fordham L. Rev. 501 passim (2021).

[113] Brnovich, 141 S. Ct. at 2348.

[114] Gaddis, supra note 2.

The Ethics of “Succession Planning” on the Federal Judiciary – Robert Luther III

Posted by arispitzer on Dec 28, 2022 in Per Curiam

The Ethics of “Succession Planning” on the Federal Judiciary

Robert Luther III*

Thomas Jefferson allegedly said that the problem with life tenure for federal judges is that “Few die, none resign.”^[1] Given that quote, he’d surely be surprised at the volume of federal judicial retirements—and the level of public interest in them—over the last few years. This Essay identifies four of the main issues raised about the ethics of “succession planning” on the federal judiciary. But first, some background on judicial retirements.

An Article III federal judge can leave the bench outright by retiring or may choose to stay on the bench with a reduced caseload as a senior judge by electing to continue serving in “senior status.”^[2] A judge is eligible to retire with benefits or “go senior” once they satisfy the “Rule of Eighty,” which means the judge has attained sixty-five years of age with fifteen years of service.^[3] Or, for every year older the judge gets beyond sixty-five, one less year of service is required so long as there is a minimum of ten years.^[4] So, a judge can retire at age seventy, with ten years of service, and so on.

To effect a retirement or to assume senior status, the judge must submit a letter to the President in care of the Counsel to the President.[5] At least by tradition, judges copy the Chief Justice, the Chief Judge of the court on which they sit, the Administrative Office of the Courts (for benefits purposes), and the judge’s two home-state Senators.[6]

The letters usually say something along the lines of: “Please be advised that having satisfied the requirements of 28 U.S.C. § 371, I shall retire from regular active service on [date], but I intend to continue performing substantial judicial duties as a senior judge.”[7] Senior status also provides substantial benefits to judges: not only can they continue to serve with a reduced workload, but they receive increased cost-of-living benefits[8] and can exercise considerable discretion in their caseloads. For example, Senior District Judges can stop hearing entire classes of cases such as civil, criminal, patent, or ERISA.[9] However, senior status also limits judicial power within the courts. Senior Circuit Judges lose their panel seniority, cannot preside on panels, and lose the ability to sit en banc—unless they sat on the underlying panel.[10] Practically speaking, that means fewer opportunities to author the kinds of opinions that make news.

I.               May a Judge Appropriately Condition Her Retirement upon the White House’s Naming of her Preferred Successor?

Legal commentator and founder of Above the Law, David Lat, wrote in the Wall Street Journal: “For a judge to condition his retirement on the appointment of a particular successor is inappropriate. Canon 5 of the Code of Conduct for U.S. Judges requires federal judges to ‘refrain from political activity,’ and selecting judicial nominees, a task the Constitution assigns to elected officials, is inherently political.”^[11]

Lat is correct that judicial ethics prohibit judges from conditioning their retirement on the appointment of a particular successor. However, that conclusion is best grounded in Canon 2B, which prohibits lending the prestige of the judicial office to advance the private interests of others, not Canon 5 where Lat finds it.[12] By subscribing to Canon 5 as authority for this view of judicial succession, Lat imposes an overly restrictive construction on its requirement that judges refrain from political activity. If, as he argues, “selecting judicial nominees . . . is inherently political”—and thus prohibited—then judges can’t participate in any dimension of the replacement process without violating Canon 5. But abstention is neither legally required nor practical.

Legally speaking, “[t]he Commentary to Canon 2B expressly provides that judges ‘may participate in the process of judicial selection by cooperating with appointing authorities and screening committees seeking names for consideration and by responding to official inquiries concerning a person being considered for a judgeship.’”[13] This commentary authorizes judges to play a passive, responsive role in the appointment process: “A judge, if asked, may recommend and evaluate judicial nominees based on the judge’s insight and experience . . . . judges may—when requested to do so—provide recommendations of persons to be considered for judicial office.”[14]

Practically speaking, judges should be permitted to provide recommendations if asked by the nominating authority, so that the White House can make the best and most-informed decision possible.^[15] When I served as Associate Counsel to the President of the United States, co-managing the White House’s judicial selection process, some members of the media criticized our consideration of specific recommendations from certain people or groups. But we considered recommendations from anyone with intelligent things to say. We probably looked at thousands of resumes and conducted hundreds of interviews. We accepted applications from the general public. There were two dozen people at the White House and at the Department of Justice involved in this process; we were not hard to find.

Because our picks were based exclusively on merit insofar as the politics would permit,[16] we consulted a lot of people, including judges. And, of course, the American Bar Association talks to judges about potential nominees during its vetting process.^[17] If Lat is correct that a judge sharing her views on a prospective nominee is prohibited political activity, then people involved in this process—and the public—will lose out on a lot of meaningful information.

Frankly, Canon 5’s ban on political activity does not seem to apply to judicial retirements at all. That Canon prohibits judges from holding office in a political organization, making speeches for or publicly endorsing political candidates, and soliciting money for or spending it on political candidates.[18] None of these activities are in the same vein as providing requested input on prospective judicial nominees. Rather, a judge explicitly conditioning her judicial seat on a particular successor—or a judge serving on a Commission that forces the President to nominate a judicial candidate—is improper under Canon 2B—which prohibits lending the prestige of the judicial office to advance the private interests of others.^[19] Because obviously, if a judge conditions her retirement on the installation of a specific successor, she uses her judicial office to advance that successor’s interests.

II.             May a Judge Appropriately Condition Her Retirement upon the Confirmation of Her Successor?

Yes. A conditional retirement letter—one that is conditioned upon a successor being named (rather than a specific successor being named)—is completely justified based on both pragmatic realities and precedent.

A.    Pragmatic Realities

Conditional retirement letters are justified on their face because they prevent the court from being short-staffed until a successor is confirmed by the U.S. Senate and appointed by the President. Because Senior District Judges can choose the types of cases they hear, some stop hearing civil or criminal cases entirely when they assume senior status. If Senior Judges reduce their caseloads without a confirmed successor, District Courts and litigants in districts with few judges may be particularly disadvantaged.

B.     Precedent

Judges and Justices appointed by Presidents of both parties have submitted conditional retirement letters for at least a few decades, but the Biden administration has seen more than ever.

Supreme Court Justices appointed by Presidents of both parties have used conditional language in their retirement letters. In 2005, Justice Sandra Day O’Connor submitted her “decision to retire . . . upon the nomination and confirmation of my successor.”^[20] And this year, Justice Stephen G. Breyer wrote: “I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed.”^[21]

Lower-court judges have also used this language. According to The Vetting Room, the first recorded lower court retirement letter containing this conditional language was submitted by Judge John L. Coffey of the Seventh Circuit during the early years of the George W. Bush administration, and a few district judges and one circuit judge followed suit.^[22]

Since then, more and more judges have used this conditional language. During the Obama administration, at least five district judges submitted conditional retirement letters.[23] In the first two years of the Trump administration, fifteen circuit judges did so.[24] And in the first two years of the Biden administration, twenty circuit judges did the same—exceeding all prior administrations.[25]

Thirty-three of President Biden’s thirty-seven circuit vacancies—almost 90%—will be Democrat appointees replacing Democrat appointees.[26] Compare this with the Trump administration where only thirty-four of fifty-four circuit vacancies—almost 63%—were Republican appointees replacing Republican appointees.[27] Does the Biden administration’s circuit court succession plan—where almost 90% of his circuit nominees will replace Democrat appointees and where more than 50% of those seats were made available because the sitting circuit judge will assume senior status “upon the confirmation of their successor”—raise any ethical issues? I don’t think so.

Judges who don’t condition their retirement on the appointment of a specific successor do not run afoul of Canon 2B’s command against using the judicial office to promote the private interests of that successor. Canon 2B also prevents a judge from “allow[ing] family, social, political, financial, or other relationships to influence judicial conduct or judgment.”[28] One may argue that conditional retirement allows political relationships to influence judicial conduct. But as Chief Justice William H. Rehnquist famously said in 2003, it is not inappropriate for a Justice to consider the party or politics of the sitting president when deciding whether to retire because “[d]eciding when to step down from the court is not a judicial act.”^[29]

III.           May a Judge Appropriately Withdraw Her Conditional Retirement Generally?

Withdrawal of a conditional retirement letter raises two questions: (1) whether a judge can withdraw her conditional retirement generally and then (2) whether she can do it based on her disapproval of the proposed successor.

The answer to the first question is yes. A 1974 Office of Legal Counsel opinion states that “a resignation to take effect in the future may be withdrawn prior to its effective date . . . .”^[30] This OLC opinion was drafted when a federal judge sought to retire due to disability and tendered his retirement letter to the President.[31] Before the President accepted his resignation, the judge received further medical advice that he was not disabled.^[32] Accordingly, he sought to withdraw his retirement letter and OLC concluded that he could do so because the withdrawal was communicated before the retirement was accepted.^[33]

This was the right result. There are many valid reasons why a judge may change her mind about retirement. One may receive such an incorrect diagnosis, recover from a health issue, or experience changes in family circumstances. While Democrat-appointed circuit judges appear concerned about being replaced during the Biden administration, those judges do not appear widely concerned about who, specifically, replaces them. This suggests that while some judges prefer to retire during a friendly administration, only the smallest percentage of retiring judges make decisions based on the individual who succeeds them.

In fact, these conclusions are supported by the evidence. In the past fifteen years, there have been around 750 Article III judicial appointments.[34] Over that same period, a total of two federal judges have withdrawn their conditional retirement letters.[35] The same number of federal judges have been impeached over this period of time.[36] That’s 0.0026%: hardly an epidemic.

One judge withdrew his retirement during the Trump administration.^[37] In that case, the judge did so because he thought his successor was wronged when the administration declined to nominate him for political reasons.^[38] And it’s happened once in the Biden administration, allegedly due to the judge’s dissatisfaction with the administration’s proposed successor.^[39] It almost happened a second time during the Biden administration based on concerns that the successor judge would not have his chambers in the courthouse of the retiring judge, thus depriving that community of judicial representation—but that was apparently a misunderstanding.^[40]

IV.           May a Judge Appropriately Withdraw Her Conditional Retirement Based on Her Disapproval of the Proposed Successor?

So, may a judge appropriately withdraw her conditional retirement based on her disapproval of the proposed successor? Yes, because Canon 2B only prohibits lending the prestige of the judicial office to advance the private interests of others. In other words, while Canon 2B prohibits the judge from conditioning her seat on her favored successor, it doesn’t prohibit the judge from rescinding her retirement letter to exercise a veto over her disfavored successor. Indeed, the Judicial Council of the District of Columbia Circuit’s In re Charge of Judicial Misconduct or Disability opinion implicitly permits a sitting judge to exercise this form of judicial veto.

One might think that withdrawing the retirement letter based on a proposed successor—effectively exercising a judicial veto—causes a separation of powers problem because the judiciary is encroaching on the President’s nomination power. But rescinding a retirement letter for whatever reason—health, family, or dissatisfaction with the successor—does not implicate the separation of powers because withdrawal only frustrates the timing of the decision—and the Executive Branch has no authority over the timing of a judicial retirement. Hence, Jefferson’s frustration that few judges die or resign.^[41]

There have been some suggestions that Congress should act to force more uniformity upon judicial retirements. But I think that any congressionally-imposed restrictions—such as requiring the retirement letter to “announce a fixed and irrevocable retirement date certain”—as Lat suggests in The Wall Street Journal^[42]—or making resignation letters formally binding—as Professor Richard Re suggests in the Iowa Law Review Online^[43]—would contradict existing precedent, the aforementioned OLC opinion, decades of practice, and perhaps Article III itself.

Finally, how serious are these concerns about judicial vetoes in light of the Judicial Council of the District of Columbia Circuit’s opinion on judicial misconduct?[44] If a sitting federal district judge for the District of Columbia can make the President pick one of his three proposed candidates, it’s not clear why a sitting judge can’t veto a President’s proposed successor. If the Judicial Council of the District of Columbia Circuit believes federal judges have the power to make the President pick future federal judges, it seems perfectly consistent with their opinion for federal judges to occasionally stand in the President’s way.

* Of Counsel, Jones Day; Adjunct Professor of Law, George Mason University Antonin Scalia Law School. From 2017–18, Mr. Luther served as Associate Counsel to the President of the United States, where his principal responsibility was co-managing the White House’s judicial selection process. Remarks substantially similar to these were delivered on November 12, 2022, at The Federalist Society’s National Lawyers Convention in Washington, D.C., on a panel entitled “The Judge’s Role in Choosing a Successor.” The author thanks his co-panelists Josh Blackman, Mike Fragoso, David Lat, and moderator, Judge Stephen A. Vaden, for sharpening his thoughts on these issues.

[1] Though a mere paraphrase, the spurious quotation has long been attributed to Thomas Jefferson. See Letter from Thomas Jefferson to the New Haven Merchants (July 12, 1801), in 34 The Papers of Thomas Jefferson: 1 May to 31 July 1801, at 556 (Barbara B. Oberg et al. eds., 2007) (“[I]f a due participation of office is a matter of right, how are vacancies to be obtained? [T]hose by death are few. [B]y resignation none.”); see also 10 The World’s Best Orations: From the Earliest Period to the Present Time 3945 (David J. Brewer ed., 1901) (attributing the phrase “Few die, none resign” to a letter penned by Thomas Jefferson in 1801).

[2] 28 U.S.C. § 294(b) (“Any judge of the United States who has retired from regular active service under section 371(b) or 372(a) of this title shall be known and designated as a senior judge and may continue to perform such judicial duties as he is willing and able to undertake . . . .”).

[3] 28 U.S.C. §§ 371(a), (c).

[4] 28 U.S.C. § 371(c).

[5] See Frederic Block, Senior Status: An “Active” Senior Judge Corrects Some Common Misunderstandings, 92 Cornell L. Rev. 533, 536 (2007).

[6] See, e.g., Letter from Victoria A. Roberts, U.S. District Judge, to President Joseph R. Biden, Jr. (Jan. 20, 2021), https://perma.cc/R88F-HAS6; Letter from William Alsup, U.S. District Judge, to President Joseph R. Biden, Jr. (Jan. 21, 2021), https://perma.cc/TLW9-JADW.

[7] See supra note 6.

[8] 28 U.S.C. §§ 371(b)(1), 461.

[9] See Block, supra note 5, at 540.

[10] See, e.g., 2d Cir. IOP 35.1 (En Banc Proceedings).

[11] Laurie Lin & David Lat, Opinion, Federal Courts Aren’t Royal Ones, Wall St. J. (Dec. 8, 2021), https://perma.cc/U7PJ-C4VF.

[12] See Judicial Council of the District of Columbia Circuit, In re Charge of Judicial Misconduct or Disability, No. 21-90051, at 7–8 (2022) (Katsas, J., dissenting) (observing that “Canon 2B prohibits judges from lending the prestige of their office to advance the interests of private parties—as a sitting judge would if actively involved in recommending some judicial candidates over others.”); see also Code of Conduct for U.S. Judges Canon 2B (Jud. Conf. of the U.S. 2019) [hereinafter Judicial Canon 2B].

[13] Committee on Codes of Conduct, Advisory Opinion No. 59: Providing Recommendations or Evaluations of Nominees for Judicial, Executive, or Legislative Branch Appointments (2019) reprinted in 2B Guide to Judiciary Policy ch. 2, at 78 (2019).

[14] Id. at 79.

[15] See generally Robert Luther III, Two Years of Judicial Selection in the Trump Administration, 80 U. Pitt. L. Rev. 775 (2019).

[16] Id. at 776.

[17] See Frequently Asked Questions, How Does the Standing Committee Perform Its Evaluations?, Am. Bar Ass’n, https://perma.cc/6AHA-HLUX (last visited Nov. 20, 2022) (“Following a process that has evolved over more than 60 years and is structured to assure a fair and impartial evaluation, the Standing Committee member assigned to the evaluation reaches out to a broad spectrum of lawyers and judges who may know the nominee and conducts confidential interviews with those who indicate that they are in a position to evaluate the nominee’s professional qualifications to serve as a federal judge.”).

[18] See Code of Conduct for U.S. Judges Canon 5 (Jud. Conf. of the U.S. 2019) [hereinafter Judicial Canon 5].

[19] See In re Charge of Judicial Misconduct or Disability, supra note 12, at 10 (Katsas, J., dissenting); see also Judicial Canon 2B, supra note 12.

[20] See Letter from Sandra Day O’Connor, Assoc. Justice, U.S. Supreme Court, to President George W. Bush (July 1, 2005), https://perma.cc/J9Q4-JE5X.

[21] See Letter from Stephen Breyer, Assoc. Justice, U.S. Supreme Court, to President Joseph R. Biden, Jr. (Jan. 27, 2022), https://perma.cc/9V8E-YVDC.

[22] Harsh Voruganti, Senior Status Upon Confirmation: The Way of the Future?, The Vetting Room (Dec. 29, 2020), https://perma.cc/44WU-TZYV.

[23] Id.

[24] Id.

[25] See U.S. Courts, Archive of Judicial Vacancies, https://perma.cc/FN77-YFDG (last visited Nov. 20, 2022). Additional research is on file with the author.

[26] Id.

[27] Id.

[28] See Judicial Canon 2B, supra note 12.

[29] Walter Dellinger, Is Justice Kennedy About to Retire? Or is it Justice Thomas?, Slate (June 25, 2017), https://perma.cc/JX8U-2KGA.

[30] Memorandum from Robert G. Dixon, Jr., Assistant Att’y Gen., Office of Legal Counsel, Dep’t of Justice, to John Duffner,

Office of the Deputy Att’y Gen. (May 1, 1974), https://perma.cc/FQE3-FQ3D.

[31] Id.

[32] Id.

[33] Id.; see also Goodman v. United States, 424 F.2d 914 (D.C. Cir. 1970).

[34] See U.S. Courts, supra note 25.

[35] The situation surrounding the conditional retirement of Judge Rudolph T. Randa, formerly of the U.S. District Court for the Eastern District of Wisconsin, arose during the Q&A of this panel. Judge Randa submitted a letter indicating his intention to assume senior status in June 2007 contingent on his successor being appointed prior to President Bush’s departure from office. See Jack Zemlicka, Randa, Peterson Staying Put for Now, Free Republic, https://perma.cc/4RMP-D4NL (last visited Nov. 20, 2022). That condition was not met, and in the last week of the Bush administration (January 12, 2009), Judge Randa sent a letter to President Bush stating that he had “decided to remain on active status and carry out the full duties and obligations of the office.” Id.; see also Allison A. Luczak, A Delicate Balance of Life Tenure and Independence: Conditional Resignations from the Federal Bench, 93 Marquette L. Rev. 309, 310 n.5 (2009). Some may argue that Judge Randa’s follow-up letter constituted a “withdrawal.” I disagree—Judge Randa’s condition was not met, so his conditional retirement expired by its own terms.

[36] Fed. Judicial Ctr., Impeachments of Federal Judges, https://perma.cc/5HQN-M6XQ (last visited Nov. 20, 2022).

[37] See Eliana Johnson, Why Pence Spiked a Trump Judge, Politico (July 12, 2019, 5:03 AM), https://perma.cc/GH9A-QNES. Although this is a widely read article on this incident, it is not completely accurate.

[38] Id.

[39] See Chris Dickerson, King Steps Back from Moving to Senior Status, Might Have Been Unhappy with Replacement Plan, W. Va. Record (Nov. 30, 2021), https://perma.cc/KJ8L-SYMD.

[40] See Robert Gavin, Biden Pick for New York Federal Judgeship in Limbo, Times Union (Aug. 8, 2022), https://perma.cc/L7N9-KF85; Robert Gavin, Gillibrand’s Office Says Biden Pick ‘Committed’ to Holding Court in Utica, Times Union (Aug. 8, 2022), https://perma.cc/AMR7-BPCR.

[41] See supra note 1.

[42] Lin & Lat, supra note 11.

[43] Richard M. Re, The Peril and Promise of SCOTUS Resignations, 107 Iowa L. Rev. Online 117, 118 (2022).

[44] See In re Charge of Judicial Misconduct or Disability, supra note 12, at 1.