FedSoc Blog

Analysis: Lower Courts Obama’s Best Shot at Legal Legacy


by Publius
Posted November 13, 2012, 4:06 PM

Reynolds Holding writes for Thomson Reuters:

Barack Obama's best shot at a legal legacy doesn't lie with the highest court in the land. Appointing Supreme Court justices attracts attention - and controversy. But what America's lower courts may lack in cachet, they make up for in influence. The president could affect the law for decades by putting his allies on these benches. What's more, vacancies currently abound.

Shaping the top court looks a stretch in any event. Liberal Justice Ruth Bader Ginsburg, 79, could retire, but replacing her wouldn't shift power to the left. The more conservative Antonin Scalia and Anthony Kennedy, both 76, may also hang up their robes, but that seems unlikely.

Obama would do better to focus on filling the 82 judgeships - about 10 percent of the total - open on the federal trial and appellate courts. That's where most legal disputes end up being resolved.

The Supreme Court sets big picture precedent, but in practice, lower courts determine the law. Overall, U.S. judges review more than 350,000 cases a year, according to the Administrative Office of the Courts. But the justices typically hear fewer than 100.

Federal regulations, especially, are generally hammered out in lower courts. Statutes like Dodd-Frank and the Affordable Care Act can't take effect without hundreds of administrative rules, many of which are contested before three-judge appellate panels and never appealed further.

The judges' ideology matters, too. Their decisions often reflect the political party of the president who appointed them. When industries challenge a regulation, for instance, Republican appointees are more likely than Democratic ones to advocate striking it down, according to a University of Chicago Law School study. The opposite is true when the challengers are public interest groups. The differences are even greater when panels consist of three judges sharing a party affiliation.

A case in point is a recent Business Roundtable lawsuit against rules for easing investor challenges to corporate boards. Republican presidents appointed all three appellate judges, and each voted to quash the rules.

Like all decisions, this one arguably followed the law. But evidence of politics in lower court rulings seems undeniable. If Obama wants to make his legal mark, he doesn't need to wait for a Supreme Court justice to retire.


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