Scholars have long worried about the legitimacy of the Supreme Court. But commentators have largely overlooked the inferior federal judiciary—and the potential tradeoffs between Supreme Court and lower court legitimacy. This Essay aims to call attention to those tradeoffs. When the Justices are asked to change the law in high-profile areas—such as abortion, affirmative action, or gun rights—they face a conundrum: To protect the legitimacy of the Court, the Justices may be reluctant to issue the broad precedents that will most effectively clarify the law—and thereby guide the lower courts. The Justices may instead opt for narrow doctrines or deny review altogether. But such an approach puts tremen­dous pressure on the lower courts, which must take the lead on the content of federal law in these high-profile areas. Presidents, senators, and interest groups then zero in on the composition of the lower courts—in ways that threaten the long-term legitimacy of the inferior federal judiciary. Drawing on political science and history, this Essay explores these legitimacy tradeoffs within our federal judicial hierarchy. To the extent that our legal system aims to protect the legitimacy of the judiciary, we should consider not simply the Supreme Court but the entire federal bench.

The full text of this Essay can be found by clicking the PDF link to the left.


From time to time, Supreme Court watchers predict that we are on the verge of a constitutional revolution. 1 See, e.g., Kathleen M. Sullivan, The Supreme Court, 1991 Term—Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 22, 24–25 (1992) [hereinafter Sullivan, Justices] (noting that after Presidents Ronald Reagan and George H.W. Bush “filled five vacancies,” various “Court-watchers claimed . . . a conservative revolution was at hand”); Amelia Thomson-DeVeaux & Laura Bronner, How a Conservative 6-3 Majority Would Reshape the Supreme Court, FiveThirtyEight (Sept. 28, 2020),‌features/‌how-a-conservative-6-3-majority-would-reshape-the-supreme-court [‌ZD9R-8VV3] (asserting that “the chances of ‘a conservative revolution’ on the court are high”); see also Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045, 1051–61 (2001) (discussing “a veritable revolution in constitutional doctrine” with respect to federalism and civil rights). Many commentators today forecast a sea change in the Court’s jurisprudence on high-profile issues, such as abortion, 2 See Clare Huntington, Abortion Talk, 117 Mich. L. Rev. 1043, 1044 (2019) (noting that many “anticipate significant” changes “if not a complete repudiation of Roe v. Wade”). affirmative action, 3 See, e.g., Erwin Chemerinsky, The Supreme Court and Public Schools, 117 Mich. L. Rev. 1107, 1117 (2019) (predicting that “there are now five justices to strike down all affirmative action programs”). gun rights, 4 See Adam Liptak, Justice Barrett’s Vote Could Tilt the Supreme Court on Gun Rights, N.Y. Times (Nov. 30, 2020), (on file with the Columbia Law Review) (noting the anticipated changes to Second Amendment doctrine). and the administrative state. 5 See Gillian E. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 3–4 (2017) [hereinafter Metzger, Administrative State] (critiquing “contemporary anti-administrativism”). Although some observers celebrate this prospect, 6 Some commentators endorse certain aspects of the predicted change in doctrine. See, e.g., John Yoo & James Phillips, Roberts Thwarted Trump, but the Census Ruling Has a Second Purpose, Atlantic (July 11, 2019),‌archive/‌2019/‌07/liberals-helped-roberts-undercut-bureaucratic-state/593737 (on file with the Columbia Law Review) (celebrating that “[t]he counterrevolution is on . . . against an administrative state run amok”); see also Joyce Lee Malcolm, Defying the Supreme Court: Federal Courts and the Nullification of the Second Amendment, 13 Charleston L. Rev. 295, 311 (2018) (arguing that “[i]t is long past time for the Supreme Court” to protect the Second Amendment). many others fear the anticipated revolution. 7 See supra notes 2–5. Accordingly, the Supreme Court is increasingly under fire. Critics have questioned the Court’s legitimacy 8 The attacks on the Court’s legitimacy were ignited in part by recent confirmation battles: Critics argue that Republicans used underhanded means to cement a conservative majority on the Court—and thereby make possible a constitutional revolution. See Tara Leigh Grove, The Supreme Court’s Legitimacy Dilemma, 132 Harv. L. Rev. 2240, 2240–42 (2019) [hereinafter Grove, Legitimacy Dilemma] (discussing the controversies surrounding Merrick Garland, Neil Gorsuch, and Brett Kavanaugh and the attacks on the Court’s “legitimacy”); see also, e.g., John F. Harris, The Supreme Court Is Begging for a Legitimacy Crisis, Politico (Oct. 29, 2020),‌2020/‌10/‌29/supreme-court-begging-for-legitimacy-crisis-433573 [] (arguing that the confirmation of Amy Coney Barrett “days before a presidential election” undermines the Court’s legitimacy). and called for structural reforms that would have been almost unthinkable a few years ago, including “packing” the Court with additional members. 9 See Opinion, How to Fix the Supreme Court, N.Y. Times (Oct. 27, 2020), (on file with the Columbia Law Review) (collecting proposals); Larry Kramer, Pack the Courts, N.Y. Times (Oct. 27, 2020),‌2020/‌10/‌27/‌opinion/pack-supreme-court.html (on file with the Columbia Law Review). Some critics call for a federal statute imposing term limits on Supreme Court Justices. See John Kruzel, Dozens of Legal Experts Throw Weight Behind Supreme Court Term Limit Bill, Hill (Oct. 23, 2020), []. Suzanna Sherry advocates a statute prohibiting concurring and dissenting opinions—to reduce the emphasis on individual Justices’ votes. See Suzanna Sherry, Our Kardashian Court (and How to Fix It), 106 Iowa L. Rev. 181, 182 (2020). Dan Epps and Ganesh Sitaraman have provocatively called for either a fifteen-member Supreme Court or one that would consist of nine-member panels drawn from the entire pool of federal appellate court judges. See Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. 148, 181–84 (2019) (proposing a “Supreme Court Lottery,” under which the Court would consist of all federal appellate court judges, who would randomly serve on nine-Justice panels for two-week periods); id. at 193–96 (proposing in the alternative a “Balanced Bench,” which would encompass a fifteen-member Court, with five affiliated with the Democratic Party, five affiliated with the Republican Party, and the remaining five selected by the first ten); see also Stephen E. Sachs, Supreme Court as Superweapon: A Response to Epps & Sitaraman, 129 Yale L.J. Forum 93, 94–100 (2019) (critiquing the proposals). But much recent discussion focuses on expanding the size of the Supreme Court (a reform that is often described as “court packing”). See Richard Wolf, Pack the Court? Battles Between Republicans and Democrats Fuel Clash over Supreme Court’s Future, USA Today (Oct. 25, 2020),‌25/‌could-amy-coney-barretts-confirmation-fuel-supreme-court-expansion/3716562001 [‌H2ZD-QDN4]. The calls for court packing push against a strong norm. See Curtis A. Bradley & Neil S. Siegel, Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers, 105 Geo. L.J. 255, 278–87 (2017); Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465, 505–17 (2018) [hereinafter Grove, Judicial Independence]; see also infra notes 315–320 and accompanying text (noting other proposed Court reforms). Whatever one thinks of the merits of the anticipated legal changes (or structural reforms), it seems that all eyes are on the Supreme Court.

This Essay argues that the narrow emphasis on the Supreme Court overlooks the broader reality of the federal judiciary. The Court cannot achieve legal change unilaterally; it must act through the lower federal courts. 10 This Essay focuses on the lower federal courts, which seem most likely to handle the hot-button issues that are the focus of so much commentary today. State court legitimacy raises important but different questions, which I hope to address in later work. And with respect to high-profile issues, the Justices may face a twofold dilemma: unappealing tradeoffs between legitimacy and legal change, and between Supreme Court and lower court legitimacy.

Let us begin with the first tradeoff: To most effectively ensure legal change on high-profile and contested issues, the Court should clarify the law through broad, rule-like precedents. Although ideology plays a limited role in most lower court decisions, empirical research suggests that judges are more likely to vote in predictable “conservative” or “progressive” directions on issues such as abortion, affirmative action, or gun rights. 11 See infra section III.A; see also Lee Epstein, William E. Landes & Richard A. Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice 168, 213–14, 237 (2013) (reporting that “ideological voting is less frequent” in the lower courts than in the Supreme Court). As a result, the Supreme Court should take special care to guide—or “rein in”—its judicial inferiors in these areas. But the Justices may feel considerable pressure not to issue broad, rule-like doctrines in precisely these high-profile contexts—particularly when the Justices perceive that the Supreme Court is under attack. Broad doctrinal rules raise the stakes of any decision and could invite additional attacks against the Court or even lead to noncompliance. Accordingly, the Justices may be tempted to issue narrow decisions or flexible standards or to deny certiorari in high-profile cases—and allow the lower federal courts to work out the details. In short, to preserve the external reputation (sociological legitimacy) of the Supreme Court, the Justices may opt not to issue the broad, rule-like doctrines most conducive to legal change.

But that leads to a second tradeoff: There are considerable risks to the lower courts when they must take the lead on the content of federal law in high-profile areas. As noted, absent clear guidance from the Supreme Court, inferior federal judges tend to be more influenced by ideology in ruling on certain high-profile cases, such as those involving abortion or affirmative action. At a minimum, political actors and interest groups assume that the law in these areas will depend on the composition of the lower federal courts. 12 See infra section III.C.1. This assumption puts pressure on Presidents and senators to emphasize judicial ideology in lower federal court appointments. And, indeed, over the past several decades, the selection of inferior federal court judges has grown increasingly partisan and divisive. 13 See infra section III.C.1. Some research suggests that this very divisiveness undermines public respect for—that is, the legitimacy of—the lower federal courts. 14 See infra section III.C.3.

We thus see the twofold dilemma: To avoid sacrificing the legitimacy of the Supreme Court, the Justices may sacrifice both meaningful legal change and the long-term legitimacy of the inferior federal bench.

Two prominent historical episodes vividly illustrate this conundrum. 15 See infra Part II. The “all deliberate speed” formula in Brown II was, in significant part, an effort to protect the Court’s public reputation; the Justices worried that segregationists would refuse to comply with a firm deadline. 16 See Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 301 (1955) (directing federal district courts to enforce desegregation orders with “all deliberate speed”). This opaque test, in turn, both sacrificed meaningful legal change and delegated desegregation to the inferior federal judiciary—leading to some of the earliest lower court confirmation wars. In Planned Parenthood v. Casey, the Justices—again, to protect the Court’s sociological legitimacy—declined either to overrule Roe v. Wade or to retain its broad, rule-like trimester framework. 17 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878–79 (1992) (plurality opinion) (O’Connor, Kennedy & Souter, JJ.) (rejecting “the rigid trimester framework of Roe v. Wade” while reaffirming the case’s “central holding”). Instead, the Court crafted the “undue burden” standard, which inferior federal judges have applied in distinct and often ideologically predictable ways. 18 See id. at 874–79; infra notes 154–157 and accompanying text (discussing how lower federal courts have applied the “undue burden” standard). This test has also raised the stakes for—and the contentiousness of—lower court selection.

Recent events underscore the risks to the inferior federal judiciary. There seems to have been an uptick in negative rhetoric about the lower courts—including, specifically, accusations that federal judges decide cases on ideological grounds. President Trump, for example, denounced adverse lower court rulings as the handiwork of “Obama judges.” 19 See infra notes 236–238 and accompanying text. Although Chief Justice Roberts and other jurists have pushed back against the charge that there are “Obama judges” or “Trump judges,” 20 Mark Sherman, Roberts, Trump Spar in Extraordinary Scrap over Judges, AP News (Nov. 21, 2018),‌c4b34f9639e141069c08cf1e3deb6b84 [‌Q9SG-TVDL]; see also Jess Bravin, No Obama or Trump Judges Here, Appointees of Both Declare, Wall St. J. (Sept. 15, 2019),‌articles/‌judges-say-they-arent-extensions-of-presidents-who-appointed-them-11568566598 (on file with the Columbia Law Review). some commentators insist that lower court judges vote in ideologically predicta­ble directions. 21 See Ramesh Ponnuru, The Chief Justice’s Defense of the Federal Judiciary, Nat’l Rev. (Nov. 21, 2018), (on file with the Columbia Law Review) (arguing that Chief Justice Roberts’s statement that there are no “Obama judges or Trump judges” is “pretty obviously untrue” because “[t]he decisions of judges appointed by Clinton and Obama generally differ, in predictable ways, from the decisions of judges appointed by Bush and Trump”); Marc A. Thiessen, Opinion, Chief Justice Roberts Is Wrong. We Do Have Obama Judges and Trump Judges., Wash. Post (Nov. 23, 2018),‌opinions/chief-justice-roberts-is-wrong-we-do-have-obama-judges-and-trump-judges/‌2018/‌11/‌23/ee8de9a2-ef2c-11e8-8679-934a2b33be52_story.html (on file with the Columbia Law Review). This commentary has, however, failed to appreciate that any such ideological voting depends in significant part on Supreme Court precedent. The Court could rein in its judicial inferiors through broad, rule-like doctrines—and thereby help protect the public reputation of the lower federal courts. But the Justices may opt instead for opaque tests in an effort to safeguard the reputation of the Court itself.

This analysis has important implications for constitutional scholarship and jurisprudence. First, this account pushes against the assumption of some scholars that the Supreme Court can easily resolve controversial iss­ues of constitutional law and thereby launch a constitutional revolution. 22 See supra notes 1–7 and accompanying text; see also Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1385 (1997) (viewing the Court “as the authoritative settler of constitutional meaning”). To the extent that the Justices are concerned about the Court’s public reputation, they may be least inclined to resolve precisely those issues on which lower courts most need guidance. 23 This analysis thus links up with the important literature on “stealth overruling” or “narrowing” of Supreme Court precedents. Compare Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1, 4–5 (2010) (criticizing “stealth overruling”), with Richard M. Re, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861, 1865–66 (2014) (defending “narrowing”).

Second, and more fundamentally, this analysis underscores that scholarship on judicial legitimacy has focused too narrowly on the Supreme Court. 24 See infra Part I and section IV.B. Many scholars argue that the Justices should decide cases with an eye to protecting the Court’s sociological legitimacy. 25 See, e.g., Deborah Hellman, The Importance of Appearing Principled, 37 Ariz. L. Rev. 1107, 1151 (1995) (arguing that “the Court must take care to preserve the esteem in which it is held”); Gillian E. Metzger, Considering Legitimacy, 18 Geo. J.L. & Pub. Pol’y 353, 364 (2020) (asserting that “concerns about preserving public support for the Court fall within the bounds of reasonable constitutional adjudication”); Tom R. Tyler & Gregory Mitchell, Legitimacy and the Empowerment of Discretionary Legal Authority: The United States Supreme Court and Abortion Rights, 43 Duke L.J. 703, 712 (1994) (“The Court wisely attends to its legitimacy in the eyes of the public . . . .”); Michael L. Wells, “Sociological Legitimacy” in Supreme Court Opinions, 64 Wash. & Lee L. Rev. 1011, 1051 (2007) (urging that the Court should decide cases so as to preserve “sociological legitimacy”); infra Part IV. Alexander Bickel and Cass Sunstein, for example, urge the Court to issue narrow (“minimalist”) rulings or deny certiorari in controversial matters so as to avoid provoking external criticism. 26 See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 69–72, 132, 250–56 (2d ed. 1986) [hereinafter Bickel, Least Dangerous Branch]; Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court 3–23, 39–41 (1999) [hereinafter Sunstein, One Case]; infra section IV.B. These scholars have overlooked the impact that such narrow or nonexistent decisions may have on the long-term legitimacy of the remainder of the federal bench. As this Essay underscores, once we take into account the entire judicial system, it is far from clear which level of the federal judiciary is better equipped to shoulder external attacks.

At the outset, a few points of clarification. First, this Essay focuses on sociological legitimacy: the external reaction to the decisions of the Supreme Court and the lower federal courts. But this Essay does not simply consider the reaction of the general public; the broader public is often unaware of the actions of the judiciary, particularly the lower courts. Accordingly, this Essay also considers—as relevant to sociological legitimacy—the perspective of government officials and political elites (including interest groups) who tend to care deeply about judicial decisionmaking. 27 Over the past several decades, Presidents, senators, and interest groups have increasingly zeroed in on the lower federal courts. See infra sections II.A.3, II.B.3, III.C.1. When the Justices refrain from issuing a broad ruling, they may be concerned about the reaction of any of these external groups. 28 Scholars debate whether the Justices are primarily concerned about the views of elites or the general public. For purposes of this Essay, it is sufficient to assume—to the extent the Justices consider external views—that they may care about any of these external groups. Compare Neal Devins & Lawrence Baum, The Company They Keep: How Partisan Divisions Came to the Supreme Court, at xi (2019) (arguing that the Justices are “elites who seek to win favor with other elites”), with Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution 16 (2009) [hereinafter Friedman, Will of the People] (arguing that the Supreme Court “ratif[ies] the American people’s considered views about the . . . Constitution”), and Jeffrey Rosen, The Most Democratic Branch: How the Courts Serve America 3 (2006) (arguing that Supreme Court decisions often reflect public opinion better than Congress). Likewise, any of these groups may zero in on the composition of the inferior federal courts. 29 See Nancy Scherer, Scoring Points: Politicians, Activists, and the Lower Federal Court Appointment Process 21–22 (2005) (emphasizing interest group influence over judicial nominations); Amy Steigerwalt, Battle over the Bench: Senators, Interest Groups, and Lower Court Confirmations 10–13 (2010) (recognizing that, at least by the 1980s, interest groups focused on lower court confirmations); see also Lauren Cohen Bell, Warring Factions: Interest Groups, Money, and the New Politics of Senate Confirmation 8–12 (2002) (discussing interest group influence in executive and judicial nominations).

Second, this Essay does not claim that there is a legitimacy tradeoff with respect to every constitutional question. The analysis here focuses on legal issues that are both highly salient and contested, such as abortion, affirmative action, and gun rights. In less salient (or less contested) areas of constitutional law, the Justices may have little to lose in articulating clear doctrine, and lower court nominees are unlikely to be quizzed about their views on low-profile issues. But notably, the category of highly salient and contested areas is not a static one. An issue may become more or less salient over time. 30 As discussed below, abortion became a more divisive matter in national politics after the Court’s decision in Roe v. Wade. See infra section II.B.1. This Essay thus does not aim to define a fixed set of highly salient and contested issues but instead seeks to identify a phenomenon—legitimacy tradeoffs within the federal judicial hierarchy—that can arise with respect to whatever divisive issues exist at a given point in our constitutional development.

Finally, this Essay does not argue that the contentious nature of lower court selection can be traced exclusively to Supreme Court doctrine. There are several interrelated factors, including the rise in party polariza­tion, the growing influence of interest groups, and changes in Senate procedure. 31 See Sarah A. Binder & Forrest Maltzman, Advice & Dissent: The Struggle to Shape the Federal Judiciary 145 (2009) [hereinafter Binder & Maltzman, Advice] (emphasizing the importance of the “institutional rules and practices” of the Senate); Scherer, supra note 29, at 4–5, 21–22 (arguing that “the parties use [lower court] nominations to curry favor with only an elite constituency within each party”); Benjamin Wittes, Confirmation Wars: Preserving Independent Courts in Angry Times 57–60 (updated paperback ed. 2009) (tracing “the decline of the [lower court selection] process . . . to the growth of judicial power that began with the Brown decision”); Keith E. Whittington, Partisanship, Norms, and Federal Judicial Appointments, 16 Geo. J.L. & Pub. Pol’y 521, 530 (2018) [hereinafter Whittington, Partisanship] (emphasizing growing party polarization). But the historical events and social science research can­vassed in this Essay demonstrate that the Court’s doctrinal choices are an important—and largely overlooked—contributing factor.

The analysis proceeds as follows. Part I introduces readers to the liter­ature on legitimacy, which has long emphasized the Supreme Court alone. Part II then provides a historical overview of how the Court has struggled to provide clear guidance on high-profile issues, such as desegregation and abortion, and both Parts II and III explore how that lack of guidance impacts the lower federal courts. Finally, Part IV examines how this analysis implicates normative debates over judicial legitimacy, minimalism, and the passive virtues. Jurists and scholars, this Essay contends, should begin to reckon with the legitimacy tradeoffs within our hierarchical system.