Supreme Values

Last semester, I took a course entitled "The Art of Appellate Decisionmaking," taught by Judge Harry T. Edwards of the United States Court of Appeals for the District of Columbia Circuit. Judge Edwards took great pains to describe to us what the role of the appellate judge truly was. In the Judge's opinion, 75 percent of the cases he hears are "easy" cases; the outcome is clearly dictated by law or precedent. Another 20 percent, he said, are "hard" cases; the law is unclear or ambiguous, precedent is not directly on point, and there are considerations that point towards different outcomes, but ultimately one outcome is much more favored by existing state of the law. (And note that appellate judges are bound by the law of their Circuit; a Circuit Court of Appeals must rehear a case en banc, with every judge on the court hearing the case, in order to reverse its precedent.) The last five percent are the "very hard" cases; in such cases, the various interpretive factors judges use are unavailing or in equipoise. In such cases, judges hit the Hartian line where "law runs out," and they must rely on other principles to guide them to a just decision.

What Happens When the Law Runs Out?

I've been reading up on the Political Question Doctrine in my Fed Courts studying, and I wanted to share some of my thoughts (this started in an e-mail thread with my study group).

In hard cases—many of the ones that get to the Court—there's a line where the text of the Constitution and the other interpretive tools judges use just run out. Where, in effect, the law has just run out. This is what happened, for example, in Boumediene with the issue of habeas corpus for Guantánamo detainees (once you start discussing "18th-century relations between England and the kingdoms of Scotland and Hanover,"—yes, an actual quote—it's pretty clear that the law has "run out").

However, in such cases Court can't just throw up its hands and say, "Not our job!" We're a Common Law country. "It is emphatically the province and duty of the judicial department to say what the law is." So they just make it up. Most of the time, I'm ok with that; I'm past any problems with the idea that "judges make the law."

The "Madisonian Compromise" is Bunk

This post is specifically for people who are Federal Courts geeks, like me. If you don't know anything about Fed Courts, or don't care, I will not be insulted if you stop reading right here.

My issue is with the so-called "Madisonian Compromise Argument," harped on by originalists and certain professors. The argument goes like this: (1) Under the "Madisonian Compromise," the Constitution created only the Supreme Court, and left it in the hands of Congress to "from time to time ordain and establish" any other federal courts. (2) Therefore, the Constitution did not anticipate there needing to be any lower federal courts. (3) The Constitution should be interpreted in such a way that would be compatible with there being no lower federal courts. This, in turn, leads to all sorts of bizarre interpretations of various constitutional provisions, including the Suspension Clause, the 10th Amendment, and various jurisdictional issues.

There are, as I see it, four reasons why this argument doesn't work.