Judicial Specialization and the Adjudication of Immigration Cases

When scholars and policymakers consider proposals for specialized courts, they are usually and appropriately mindful of the potential effects of specialization on the adjudication of cases. Focusing on the immigration field, this Article considers these potential effects in relation to other attributes of adjudication: the difficulty of cases, the severe caseload pressures, and the strong hierarchical controls that are each important attributes at some or all levels of the adjudication system. Specifically, this Article discusses the effects of those attributes, the effects of judicial specialization, and the intertwining of the two. It applies that analysis to proposals to substitute some type of specialized court for the federal courts of appeals in the adjudication of immigration cases. The Article concludes that the impact of adopting such a proposal could be substantial but that it is also quite uncertain. To a considerable degree, the impact depends on the form of specialization adopted and on other provisions of the legislation that creates a specialized court

Protean Statutory Interpretation in the Courts of Appeals

This Article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It is also among the first to anticipate how the Supreme Court’s interpretive approach may shift with the passing of Justice Scalia. We begin by identifying factors that may contribute to interpretive divergence between the two judicial levels, based on their different institutional structures and operational realities. In doing so, we discuss normative implications that may follow from the prospect of such interpretive divergence. We then examine how three circuit courts have used dictionaries and legislative history in three subject matter areas over the past decade and compare these findings in detail to the interpretive approach taken by the Roberts Court in the same three fields. We determine that the appeals courts have followed a protean approach, adapting their usage patterns in ways that differ substantially from patterns in the Supreme Court. Court of appeals judges use dictionaries far less relative to legislative history than do the Justices; we found no semblance of the distinctive dictionary culture that is prevalent on the Roberts Court. In addition, the relative frequency of dictionary usage between the two court levels varies considerably depending on the subject area and the type of dictionary (general or legal). With respect to relative frequency for legislative history, the Supreme Court, far more than the circuit courts, invokes the record of changes in statutory text—either modified over multiple Congresses (statutory history) or developed in successive preenactment versions of a bill (drafting history). This “vertical history” is apparently more attractive, or less unattractive, to textualist Justices than is traditional legislative history commentary such as committee reports. More broadly, circuit courts regularly use legislative history to resolve ambiguities, confirm apparent meaning, or simply explicate legislative intent, all without characterizing its legitimacy or systemic value. For both dictionaries and legislative history, the eclectic approach of the appeals courts differs markedly from the Supreme Court’s more self-consciously articulated methodological path. We suggest how certain sources of interpretive divergence contribute to these differences, notably the Justices’ interaction with their colleagues in every case and their experience as objects of continuing media and congressional attention, some of which reflects attention that carries over from the judicial confirmation process. We conclude that the eclecticism of the appeals courts is likely to limit judicial discretion more effectively than the Supreme Court’s current approach, which favors clear interpretive rules or priorities that are applied on a presumptively consistent basis

Oasis or Mirage: The Supreme Court\u27s Thirst for Dictionaries in the Rehnquist and Roberts Eras

The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. We find that while textualist justices are heavy dictionary users, purposivist justices invoke dictionary definitions with comparable frequency. Further, dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of dictionary usage reflect a casual form of opportunistic conduct: the justices almost always invoke one or at most two dictionaries, they have varied individual brand preferences from which they often depart, they seem to use general and legal dictionaries interchangeably, and they lack a coherent position on citing to editions from the time of statutory enactment versus the time the instant case was filed. The Article then presents an innovative functional analysis of how the justices use dictionaries: as way stations when dictionary meanings are indeterminate or otherwise unhelpful; as ornaments when definitions are helpful but of marginal weight compared with more traditional resources like the canons, precedent, legislative history, or agency deference; and as barriers that preclude inquiry into or reliance on other contextual resources, especially legislative history and agency guidance. Ornamental opinions (the largest category) typically locate dictionary analysis at the start of the Court’s reasoning, subtly conveying that the lexicographic method should matter more than other interpretive resources. Barrier opinions would have been inconceivable prior to 1987 but now occur with disturbing frequency: they elevate the justices’ reliance on definitions in a radically acontextual manner, ignoring interpretive evidence from the enactment process and from agency experience. Finally, the Article analyzes whether the Court’s patterns of inconsistent dictionary usage, and its tendency to cherry-pick definitions that support results reached on other grounds, distinguish dictionaries from high-profile interpretive resources such as canons and legislative history that have been criticized on a similar basis. We contend that dictionaries are different from a normative vantage point, essentially because of how both wings of the Court have promoted them by featuring definitions frequently and prominently in opinions, and also how dictionaries are effectively celebrated as an independently constituted source of objective meaning (unlike the canons as judicial branch creations and legislative history as a congressional product). Yet our findings demonstrate that the image of dictionary usage as authoritative is a mirage. This contrast between the exalted status ascribed to dictionary definitions and the highly subjective way the Court uses them in practice reflects insufficient attention to the inherent limitations of dictionaries, limitations that have been identified by other scholars and by some appellate judges. The Article concludes by offering a three-step plan for the Court to develop a healthier approach to its dictionary habit

Hiring Supreme Court Law Clerks: Probing the Ideological Linkage Between Judges and Justices

Since the 1970s, the overwhelming majority of Supreme Court law clerks have had prior experience clerking in lower courts, primarily the federal courts of appeals. Throughout that period, there has been a tendency for Justices to take clerks from lower court judges who share the Justices’ ideological tendencies, in what can be called an ideological linkage between judges and Justices in the selection of law clerks. However, that tendency became considerably stronger between the 1970s and 1990s, and it has remained very strong since the 1990s. This Article probes the sources of that alteration in the Justices’ selection of law clerks. Although no definitive conclusions are possible, two developments seem to be responsible for the change. The first is growing ideological polarization among political elites, which has given Justices stronger incentives to seek out law clerks whose policy preferences are similar to those of the Justices. The second is a pair of changes in applications for Supreme Court clerkships: a massive increase in the numbers of applicants and the development of a practice in which applicants apply to all nine Justices. These changes give the Justices more reason to use the identity of the judge with whom an applicant has clerked as a source of information about the applicant’s policy preferences. Thus, it appears that a major change in the character of American politics has combined with changes in clerkship applications to bring about a strengthening of the ideological linkage between judges and Justices in clerk selection