Over the last half-century, the federal courts have faced down two competing crises: an increase in small, low-value litigation thought unworthy of Article III attention and an increase in the numbers and complexity of “big” cases thought worthy of those resources. The choice was what to prioritize and how, and the answer the courts gave was consistent across all levels of the federal judiciary. Using what this Article calls “macro-judging,” Article III judges entrenched their own power and autonomy to focus on the work they deemed most “worthy” of their attention, while outsourcing less “important” work to an array of non-Article III decisionmakers (including law clerks, staff attorneys, and magistrate judges). These reforms have prioritized judicial control, power, and autonomy, and they have ensured the maintenance of a small, elite, and selective federal bench focused on only what they deem to be the most “important” federal work.
Ultimately, “macro-judging” has enabled courts to maintain and perpetuate Article III exceptionalism—that is, the view that federal courts should be small, elite, and focused on “big” or “important” cases. Whether Article III exceptionalism comes from the near obsessive focus of scholars on the federal courts or is a byproduct of the commonplace desire to increase power in, recognition for, and autonomy over one’s work, the federal judicial culture of elitism that has developed carries significant risks for democracy. By exalting the federal judiciary as elite and special, the ordinary litigant in the civil system loses out on Article III attention. Article III exceptionalism may also foster a judicial culture that eschews restraint, as judges issue bolder, bigger rulings thought worthy of a high-profile federal judiciary. Each day brings new signs of the costs of unbridled and self-important federal courts: a Supreme Court emboldened to cast aside precedent disfavored by a new majority; intermediate appellate courts dismantling the administrative state; and district courts overriding national public health policy. To combat these challenges, this Article argues for a rethinking of the role of federal courts to reinvigorate their public-service mission—a return, perhaps, to Article III ordinariness.
Vanderbilt Law Review, Forthcoming (2023)