In recent Terms, the Supreme Court has heard numerous appeals from the decisions of three-judge district courts in controversial Voting Rights Act cases as well as in challenges to congressional districts designed allegedly to facilitate the elections of members of minority groups. Although the cases themselves have been followed closely, the institutions of the three-judge district court itself has received relatively little attention, even though Congress passed legislation in 1976 that restricted the three-judge district court's jurisdiction to reapportionment and certain Voting Rights Act cases. This article argues that numerous problems attend the formation and operation of such courts. He reviews both structural problems and administrative problems. He concludes that the court should be abolished, permitting a single district judge to consider the cases currently litigated before such courts with normal appellate review thereafter. He considers alternative reforms and critically examines proposals to expand the current jurisdiction of three-judge district courts.

Judicial interpretations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment underwent significant change, both expanding and retrenching in various ways, in Supreme Court doctrine during the Warren and Burger Courts. An underappreciated influence on the change is the method by which those cases reached the Court’s docket. A significant number of the cases reached the Court’s docket not by discretionary grants of writs of certiorari, as occurred in most other cases, but by mandatory appeals directly from three-judge district courts. This Article makes several contributions regarding the important changes in these doctrines during the Warren Court (1954–1969) and the early Burger Court (1969–1976), before Congress in 1976 limited the scope of three-judge courts and the concomitant mandatory appeals. It documents the number of such cases during the time periods in question; addresses the quantitative and qualitative changes in equal protection and due process (and other) doctrines influenced, at least in part, by the availability of mandatory appeals; and normatively addresses the propriety of this influence in light of the renewed interest in reestablishing at least some mandatory appeals in current proposals to “reform” the Supreme Court.

Abstract The chapter addresses party patronage in the United States. Potentially a broad topic, concerning when public officials, as patrons, use public resources in some way to support their party or reward its members or supporters, the chapter focuses on the practice of rewarding supporters with appointed public employment. The use of party patronage throughout American political history, reforms thereof such as civil service, and legal challenges thereto are addressed. The Supreme Court has held that the First Amendment limits the use of patronage in public employment, except for positions that involve policymaking, though that exception has not been precisely defined. Also discussed is the impact of the Supreme Court’s decisions on political parties, and on appointments to other public offices, such as state judges.

The "shadow docket" is the term recently given to a long-standing practice of the U.S. Supreme Court, in granting or denying requests for stays of lower court decisions, often on a hurried basis with rudimentary briefing and no oral argument, and with little if any explanation by the Court or individual Justices. Recently, the practice has received unusual attention inside and outside the legal community, because of its seemingly increased use by the Court in high-profile cases, with the emergency orders often sought by the federal government or state officials. Scholars have advanced various reforms to ameliorate the perceived problems of the shadow docket. One suggestion is to require suits against federal statutes and policies to be litigated before a specially convened three-judge district court, perhaps in the District of Columbia, with a direct appeal to the court. Supporters argue that this process would result in more consistent decision-making by the Court and lower courts. This Article critically examines a suggested reform. As its supporters acknowledge, the reform would largely replicate the procedure Congress established from 1937 to 1976 for challenges to the constitutionality of federal statutes. Congress abolished the special procedure in 1976, given opposition from the federal judiciary and others, in part due to it being perceived as unnecessary, and burdening the Court with mandatory appeals. The Article first evaluates the recent suggestion, considering the prior experience, an evaluation that includes an empirical analysis of Supreme Court decisions under the earlier process. It then considers proposals to establish exclusive jurisdiction in the federal courts in the District of Columbia, which would reduce forum shopping but deprive the court of the benefits of percolation of multiple suits. The Article concludes that the suggested reform could ameliorate some of the problems of the shadow docket, but should be undertaken with an appreciation of the decidedly mixed past experience with similar institutional arrangements.

Objectives We introduce a new, stable, and reliable measure of gerrymandering based on the number of unnecessary overlapping state House districts within U.S. House districts. We then test for the presence of racial disparities by considering the relative number of unnecessary overlapping districts in majority-white and majority-minority areas. Methods We utilize a data set encompassing maps in place in the 2012-2022 period from all 35 states with at least four congressional districts. Collectively this includes 386 U.S. House districts and more than 3600 state House districts. Results We find widespread unnecessary district overlaps. In 34 of the 35 states examined, congressional districts overlap with more state House districts than is mathematically required. Moreover, unnecessary district overlaps are not imposed uniformly. Regression results suggest that districts with the largest white population experience roughly half the unnecessary overlaps imposed on districts with the smallest white population. Conclusion We argue the implications of this racial disparity are significant given that previous research finds that confusing district boundaries have a deleterious effect on the basic pillars of representation. This effort represents a new and straightforward gerrymandering metric with implications for the study of representation and the pursuit of fair districts in the courts.

In the congressional district maps in effect from 2012 to 2021, millions of Americans were "castaway" from the largest congressional district in their home county. We show that castaway status was disparately imposed, such that majority-minority census tracts were roughly twice as likely to be castaway relative to majority-white areas. The implications of this disparity are significant given that previous research suggests castaway status has a deleterious effect on basic pillars of representation. This effort to demonstrate who is castaway in the redistricting process augments both scholarly and legal understanding, enhancing our ability to identify individuals whose access to representation may be compromised by gerrymandering, offering a new indicator of gerrymandering, and moving debate beyond the limitations of the ubiquitous collective focus on such matters as how many votes produce how many legislative seats.

ObjectiveWe consider proximity and access to the district offices of members of Congress to explore whether gerrymandering affects individuals’ capacity to be heard and thus impairs their representation.MethodsIn a study of six states, we conduct more than 123 million distance measurements to identify residents whose closest district office is in the wrong congressional district. Based on survey results, we then estimate the likelihood that such mismatched individuals will personally visit the office of their member of Congress.ResultsWe find that in five gerrymandered states, between 28.7 and 47.5 percent of residents have a mismatched closest district office, a rate several times higher than in a non‐gerrymandered state. Extrapolating from survey results, we find that mismatched residents are 38 percent less likely to visit their own district office, and that across five states gerrymandering effectively deters nearly 600,000 office visits over a two‐year congressional session.ConclusionOf significance in both the legal and scholarly arena, we find that gerrymandering increases the prevalence of mismatched district offices, thereby impeding constituents from making in‐person visits that are widely viewed as the most effective mechanism for communicating their opinions and needs to Congress. We believe this heretofore undocumented mismatch warrants additional scholarly consideration of gerrymandering's effects on individual's access to tangible aspects of representation.

The three-judge district court has had a long and strange career in the history of the federal court system. Congress created the court in 1910 as a response to the canonical decision of Ex parte Young two years earlier, which permitted federal court suits against state officials to facilitate constitutional challenges to state laws. The three-judge court statute was a reaction by Progressive Era politicians to such perceived judicial overreach, and required any such challenges to be brought before a specially convened trial court of three judges, with a direct appeal to the Supreme Court available. First established as a presumed limit on judicial activism, decades later plaintiffs in the Civil Rights Era came to see the court as advancing their agenda. Particularly in the South, some plaintiffs preferred to have their suits decided by three judges rather than the usual one, with a direct appeal available to a relatively friendly Warren Court. For that and other reasons, the total number of such cases in the district courts, and direct appeals to the Supreme Court, swelled in the 1960s and 1970s. But at the same time the court came to be seen by many as administratively burdensome and unnecessary, and Congress in 1976 severely restricted the jurisdiction of the court, limiting it to hearing only reapportionment cases. Analysis of the three-judge district court has so far largely relied on anecdotal evidence, and limited empirical studies, to examine whether some plaintiffs in the Civil Rights Era were correct to consider the court as friendly to their interests, as compared to a typical single district judge with the normal appeal process. This article breaks new ground and extends those studies by systematically reexamining these assumptions through a unique, nationwide database of 885 three-judge district court decisions, regarding constitutional challenges to state laws, handed down from 1954 (the start of the Warren Court) to 1976 (when Congress limited the Court’s jurisdiction). The study provides greater and more complete information on the number, types and results of cases litigated in the court, as well as on the dispositions of appeals to the Supreme Court. Among our findings are that such court decisions were disproportionately in favor of plaintiffs, both in and outside the South, and that there was a high rate of appeal to the Supreme Court. We then consider how the decisions of the three-judge court, and its direct appeal mechanism, affected jurisprudential developments in several areas of civil rights litigation, including reapportionment and judicial abstention. We also address how these decisions impact the Judicial Capacity model, which posits that the sheer number of cases that come to the Court for review affects doctrinal developments. The study situates the three-judge district court in a richer historical context, and sheds light on the continued use of the court in more limited contexts to the present day.

Two controversies currently roiling federal courts scholarship are whether and to what extent States have standing as plaintiffs in federal court, and when if ever federal courts can issue nationwide injunctions against governmental actions, even when only one or a small number of States or other parties have brought suit. While both issues have arisen in the same litigation, such as Massachusetts v. EPA and, more recently, the Texas v. United States challenge to DACA, rarely are they discussed or considered together in any systematic manner. This article undertakes that task. Part I of the Article addresses the issue of State standing, and argues that such standing is well-grounded in the traditional parens patriae powers of States, and should be permitted to protect the health, welfare and natural resources of their citizens. That is, courts should permit States to have standing under somewhat relaxed criteria as compared to what private plaintiffs must show. Part II turns to national injunctions, discusses the recent increases in the issuance of those decrees, and explores the controversy over when if ever federal courts possess powers under equity or standing criteria to bind the entire nation. Part III addresses both topics in a coordinated manner. It outlines the pathologies of one or more States bringing suit, particularly in the partisanship demonstrated by States led by attorneys generals or governors of States from the same political party suing to stop the actions of a Presidential Administration of a different party. Allowing such suits also can improperly intrude on policymaking best left to Congress and the President. While States in some circumstances have standing to sue, it does not automatically follow that even when successful that the entire nation should be subject to an injunction. Rather, we propose two alternatives to the simple dichotomy that courts always, or never, have authority to issue such injunctions. One option is simply that only the States that are parties to the suit can be subject to the injunction. A second option is to allow the possibility of nationwide injunctions, but before issuing such decrees, courts should take into account factors such as the number, and geographic and partisan diversity, of the States, who (attorney general or governor) is representing a state, and which one or more States are opposing the decrees, as parties or amici curiae. These criteria would better inform and integrate judicial consideration of State standing and national injunctions when they arise in the same case.

As recent partisan gerrymandering cases have shown, three-judge district courts play a unique and important role in how the federal judiciary considers significant election law disputes. Yet two somewhat quirky procedural questions involving these courts remain unresolved: first, is a Supreme Court ruling to summarily affirm a three-judge district court's decision precedential on all future courts? That is, why should a one-line order from the Supreme Court, without explanation, formally bind all future courts on the issue, especially when it is unclear what aspect of the lower court's decision was correct? Second, must a three-judge district court follow, as mandatory authority, circuit precedent in the circuit in which it sits, even though an appeal from the ruling of a three-judge district court will skip the court of appeals and go directly to the U.S. Supreme Court? This Article tackles these problems and provides clear-cut answers, which will ultimately improve judicial decisionmaking for some of the most important cases that the federal judiciary hears given their effect on democracy. On the first question, we find that summary decisions of the U.S. Supreme Court are entitled to zero or very little precedential value, and therefore that the Justices need not feel obliged to hear these cases in full if they want the issue to percolate in the lower courts first. Yet there should be a presumption in favor of the Court providing legal guidance on the issue, meaning that most of the time it should set the case for oral argument and provide a full written opinion. On the second question, we conclude that circuit precedent is not formally binding on three-judge district courts, although of course in many cases it will be highly persuasive. Procedural questions stemming from three-judge district courts impact their substantive rulings, which mostly involve redistricting and campaign finance. Resolving these two questions on the procedures involving three-judge district courts will help to ensure that these special courts operate as Congress intended, ultimately improving our electoral system.

In his dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), Justice Clarence Thomas argued that the Supreme Court had been inconsistent in the rigor it employs when considering constitutional challenges to the products of direct democracy, i.e., referenda and initiatives. Some cases seemed to use stricter scrutiny, and others lesser scrutiny, as compared to challenges to ordinary legislation. Justice Thomas argued that the review of direct democracy should be the same as for ordinary legislation, and this Article agrees. It challenges the position advanced by Professor Julian Eule 25 years ago, and others since then, that the process and products of direct democracy are suspicious enough to warrant stricter judicial scrutiny. In contrast, this Article contends that, on the whole, direct democracy is sufficiently similar to ordinary legislation, and not particularly invasive of minority rights, such that no special judicial hostility is warranted.

A striking development in American criminal justice in the past forty years is the widespread adoption and acceptance of the rights of victims, at both the federal and state levels. A notable exception to this innovation has been the repeated, unsuccessful attempts, continuing to the present day, to pass a Victims’ Rights Amendment to the U.S. Constitution. The considerable scholarly literature on the VRA has not rigorously examined the putative need for the VRA from a federalism perspective, a task this article undertakes. The article examines the history of the victims’ rights movement, and of the repeated attempts to pass the VRA. We argue that both supporters and critics of the VRA have not convincingly addressed federalism issues raised by the potential adoption of the VRA. In contrast, we argue that functional principles of federalism suggest that the VRA and nationalization of victims’ rights is unnecessary. On the other hand, we argue that there is one way that the federal government can recognize state development of victims’ rights. In habeas corpus actions in federal court, challenging state court convictions, we argue that victims of state crimes should be permitted and encouraged to participate in those proceedings, in ways not generally permitted to date.

Most constitutional challenges in federal court to federal statutes are litigated in the familiar pattern of a decision by a single U.S. District judge, followed by an appeal to a three-judge panel of one of the U.S. Court of Appeals, followed by the filing of a writ of certiorari in the U.S. Supreme Court, which has discretion to grant or deny the writ. Sometimes, however, Congress requires a separate path for constitutional challenges to particular federal statutes, with the frequent challenges to provisions of the Bipartisan Campaign Reform Act, such as in Citizens United v. FEC (2010), being a notable example. These provisions often provide for the convening of a three-judge district court, usually in the District of Columbia, followed by an ostensibly mandatory appeal to the Supreme Court. They often also permit members of Congress to bring or intervene in such actions, and mandate that the federal courts decide the cases in an expeditious manner. All of these characteristics are absent from the typical challenge to federal statutes.These atypical jurisdictional provisions in effect establish specialized if temporary federal courts to rule on constitutional issues. The causes and consequences of specialized federal constitutional courts are an understudied phenomenon in the scholarly literature, a gap filled by this article. The article first summarizes the history of the three-judge district court, founded to consider all constitutional challenges to federal statutes, from its establishment in 1937 to its repeal in 1976. It next documents the instances when Congress has subsequently created such courts on a statute-specific basis, and addresses the rationales advanced in the legislative history, namely, uncertainty over a statute’s constitutionality, and the asserted need to promptly resolve that issue. The article then subjects the partial revival of such courts to critical examination. It argues that a complex and sometimes inconsistent set of reasons, including but not limited to Congressional abdication of constitutional deliberation to the judicial branch, explains the ad hoc adoption of these statutes. The article argues that other provisions of these laws, such as mandating venue in the District of Columbia or expeditious treatment, are unnecessary. Finally, it contends that cases litigated before these courts have a possibly deleterious impact on the quality of decisions in the Supreme Court. The article concludes that Congress should not pass these statutes and rather permit all constitutional litigation to proceed in a uniform manner.

This article addresses the confluence of two phenomena characterizing litigation in the United States Supreme Court. The Solicitor General represents the United States in the Court, and the SG has been extraordinarily successful as a litigant, and in supporting other successful litigants through the filing of amicus curiae briefs. Likewise, many interest groups, and the United States and state governments, have increasingly filed amicus briefs in Court cases. The SG participates as a party or an amicus in well over half of the cases decided on the merits by the Court, especially significant given the Court’s shrunken docket in recent decades. The Court often cites the SG’s amicus briefs, and requests the SG to file such briefs at the certiorari and merits stages. Given the high quality of the SG’s work in general, and the apparent helpfulness of the SG’s amicus briefs, many observers seem to approve of the status quo, and applaud the SG filing numerous amicus briefs, and their influence on the Court.This article challenges the conventional wisdom with a jurisprudential critique of the current practices of the SG and the Court, focusing on the SG’s filing of amicus briefs in cases where the interests of the United States are attenuated, and on the Court’s inconsistent deference to these briefs. The article argues that the SG should only file amicus briefs in cases where the interests of the United States, and particularly of the executive branch, are directly affected, as opposed to cases concerning the broader policy agenda of an administration. The article next examines the deference sometimes given the SG’s amicus briefs in Supreme Court opinions. The Court has not been a model of consistency regarding this deference in certain categories of cases. In other casesit seems to treat the SG amicus brief as entitled to no greater deference than the amicus brief of any other interest group. Using as examples SG amicus briefs filed in recent Terms, the article proposes and applies criteria to constrain the SG in filing such briefs, and to guide the Court in giving appropriate deference to such briefs. Under these criteria the SG will still play a significant role in Supreme Court litigation, but that role will be limited to the particular interests of the executive branch.

The Supreme Court’s decision in Baker v. Carr (1962) unleashed the reapportionment revolution, and it was largely driven by litigation in the lower federal courts, with additional guidance by the Supreme Court. That litigation continues to the present day, revived every decade by census data, and further complicated by the demands of the Voting Rights Act and other factors. Less appreciated has been the role of Congress and the President in influencing that litigation. Baker was initially quite controversial, and the hostility was manifested by bills in Congress which would have restricted the impact of the case. That opposition soon receded, and Baker came to be supported by most policy-makers and the public. In 1976 Congress abolished the much criticized three-judge district court, but demonstrated its support for Baker by leaving it intact as a forum for litigation of reapportionment cases. The reasons for that decision are not clear, but one appears to be to reduce the pressures on one judge in such politically charged cases by making three judges responsible. The President, through amicus curiae briefs filed by the Solicitor General, supported the result in Baker, and influenced the doctrinal development of subsequent reapportionment cases. Those briefs also provided political support for federal court intrusion on apportionment matters heretofore left to state legislatures. This article addresses the consequences of these actions by the legislative and executive branches on federal court reapportionment cases since Baker, and situates that interbranch interaction in the academic literature focusing on the institutional context and aftermath of Supreme Court decisions.