Why the Court Succeeded

The Supreme Court, which became increasingly conservative as a result of appointments by Republican presidents over the period we study, had greater success in advancing the goals of the counterrevolution against private enforcement than did Republican presidents, Congress, or the rulemakers. For reasons that we explore in the next section of this chapter, gauging the actual effects of the Court's decisions on private enforcement is complex and difficult. It is clear, however, that the Court was more successful than the other federal lawmakers we study in shaping law against private enforcement. The Court's posture toward private enforcement underwent a transformation from highly supportive in the early 1970s to antagonistic today. Why did the Court succeed when those sympathetic to the counterrevolution's goals in the other lawmaking sites largely failed?

In Chapter 2 we discuss a number of institutional characteristics that made retrenchment of private enforcement difficult for proponents of the counterrevolution in the elected branches. The distinctive political and electoral challenges of retrenching existing rights with broad public resonance by statutory amendment – a goal that is obvious when the proposed amendments target statutory private enforcement regimes or procedural rules known to have dramatic impact on substantive rights – coupled with the inherent stickiness of the status quo arising from America's fragmented legislative institutions, proved to be more than the movement could surmount in Congress. So long as Democrats controlled at least one chamber of Congress, Republicans' retrenchment proposals, whether initiated by the executive or the legislative branch, had little chance of success. Indeed, even when Republicans secured control of both chambers, and for a time concurrently held the presidency, their occasional successes were modest, usually required years to enact, and clustered in a few discrete policy areas. Beginning in the late 1990s, Republican proposals for legislative retrenchment began a long decline to the point that they are negligible in number today. The issue has essentially disappeared from the legislative agenda.

In Chapter 3 we uncover similar dynamics affecting court rulemaking, delegated legislative activity that was a powerful engine driving private enforcement through the 1960s, most notably in the 1966 amendments to Rule 23 (class actions). We show that rulemaking became the focus of retrenchment efforts starting in 1971, under the leadership of the first of a succession of Chief Justices appointed by Republican presidents. However, once its potential for that purpose became apparent, rights-oriented interest groups and Democratic members of Congress who favored private enforcement quickly responded. Their efforts ultimately led to reforms in the rulemaking process that made the process itself more transparent, more accessible to public participation, and stickier. These reforms to the rulemaking process, in turn, made major retrenchment under its auspices more difficult, even by committees increasingly dominated by judges appointed by Republican presidents and corporate attorneys. On one view, the history of the 2015 amendments to the discovery rules suggests that those barriers can be overcome when leaders within the judiciary who are predisposed to the goals of the counterrevolution believe that concerns about the perceived legitimacy of the Enabling Act process can safely be subordinated to the desire to exercise power. On another view, that history confirms the difficulty of effecting ambitious retrenchment through rulemaking and highlights the importance of the struggle for influence on judicial interpretation.

In Chapter 4, we show that, although the counterrevolution largely failed in the elected branches and was only modestly successful in the domain of court rulemaking, it flourished in the federal courts. Having learned that retrenching rights enforcement by statute was politically and electorally perilous – and unlikely to succeed – the proponents of the counterrevolution pressed federal courts to interpret, or reinterpret, existing federal statutes and court rules to achieve the same purpose. They found a sympathetic audience in courts that were increasingly staffed by judges appointed by Republican presidents. Some of these judges were ideologically sympathetic to the retrenchment project; some were connected to the conservative legal movement that had given birth to the counterrevolution, and some had even participated in or promoted the Reagan administration's failed efforts to retrench private enforcement of federal rights through legislation.

Incrementally at first but more boldly in recent years, conservative majorities of the Supreme Court have transformed federal law over the past four decades, making it less and less friendly, if not hostile, to the enforcement of rights through private lawsuits. This branch of the campaign for retrenchment achieved victories in a long succession of decisions interpreting statutory private enforcement regimes, reshaping standing and private rights of action doctrine, and interpreting the Federal Rules of Civil Procedure. Even if such apparently technical and legalistic rulings do not attract the notice of the American public, their importance is plain to the members of the Supreme Court. Or at least that is how we interpret our findings that both non-procedural private enforcement cases and, even more so, cases calling for interpretation of the Federal Rules of Civil Procedure, have emerged in recent years as axes of ideological conflict among the justices even more factious than conflicts over substantive rights.

This fact is especially striking when viewed alongside the legislative story. At the same time that retrenchment of private enforcement has essentially disappeared from the legislative agenda, ideological polarization on the issue is at its highest point ever on the Supreme Court. Moreover, as suggested by the data on amicus filings that we present in Chapter 4, the issue remains a high priority of the Chamber of Commerce and conservative law reform organizations. On the surface this may appear anomalous. But from the institutional perspective we advance in this book, it is readily explicable. By the late 1990s, it must have become evident to congressional Republicans that major retrenchment of private enforcement would not come from Congress. The institutional hurdles were simply too high. At the same time, it must have become clear to the conservative justices that significant retrenchment would come from the Supreme Court or not at all. As the conservative wing of the Court has granted review and prevailed in cases that are more and more polarizing, congressional Republicans have focused their legislative efforts elsewhere, knowing that, as we observed about class action retrenchment in Chapter 4, the counterrevolution is in the hands of those best equipped institutionally to achieve its goals.

In Chapter 5, drawing on institutional theory, we argue that the ostensibly technical and legalistic qualities of the Court's decisions on issues affecting private enforcement, and the gradual, evolutionary nature of case-by-case decision-making, opened a pathway of judicial retrenchment that was remote from public view as compared to legislative politics, court rulemaking after the reforms of the 1980s, and Supreme Court decisions on highly salient issues. We show that the Court's decisions on private enforcement issues are, indeed, covered much less than decisions on the pertinent merits issues by major newspapers, that the differences increase as coverage moves from round-up articles to single-case articles, to opinion and editorial pieces, and to front-page single-case articles. We also find no evidence that either heightened polarization on the Court over private enforcement issues or growing criticism of the Court's private enforcement decisions by scholars has influenced the amount of information that the press conveys to the public. Finally, we find no evidence that those decisions tracked public opinion.

The preceding chapters thus highlight a host of distinguishing institutional characteristics that theory and our evidence suggest are pertinent when comparing the results of the counterrevolution's project to change law governing or influencing private enforcement across lawmaking sites. We believe that four have the greatest explanatory value in assessing the reasons for the Supreme Court's success in implementing that project.

First, as contrasted with the institutional fragmentation of the legislative and rulemaking processes, the Court is governed by a more streamlined decisional process and simple voting rules, making it comparatively more capable of unilateral action on controversial issues (Whittington Reference Whittington2007: 124–34). Four justices suffice to put an issue on the Court's agenda, and bare majorities routinely win in decided cases, although they rarely do to enact legislation (or to send forward Federal Rules). Indeed, in Chapter 4 we suggest that the growing polarization between conservative and liberal justices over private enforcement issues, which is particularly striking in the Court's Federal Rules decisions, may reflect a narrow but determined conservative majority pressing its advantage in pursuit of the counterrevolution's goals, and the liberal justices' response. Justice Kagan said as much when, in a passage we quote in Chapter 4, she dissented from one of the Court's decisions upholding arbitration clauses that prohibit party aggregation, which collectively pose an existential threat to private enforcement of small claims under federal (and state) law: “To a hammer everything looks like a nail. And to a Court bent on diminishing the usefulness of Rule 23, everything looks like a class action, ready to be dismantled.”Footnote ¹

Second, legislators and presidents are democratically accountable through elections. This accountability limits their ability to retrench existing rights that enjoy broad popularity (Pierson Reference Pierson1994: 17–19; Graber Reference Graber1993). Retrenching rights is electorally dangerous. By reason of the phenomenon of “negativity bias” (or an “endowment effect”), people are substantially more likely to mobilize to avoid losing existing rights and interests than they are to secure new ones. Politicians understand that, for the same reason, voters are more likely to punish those who have impaired their interests than to reward those who have benefited them (Pierson Reference Pierson1994: 39–46; Eskridge and Ferejohn Reference Eskridge and Ferejohn1995: 1560–2). Chapter 2's account of the birth of the counterrevolution in the first Reagan administration, which is grounded in original archival research, demonstrates that prominent among the influences that doomed the administration's legislative initiatives was the fear, abetted by extensive press coverage of its fee-capping bill, that the public would regard the bills as further evidence that it was hostile to civil rights and punish the bills' elected sponsors in the 1984 elections.

Members of the Advisory Committee on Civil Rules are not elected. Yet, as we observe in Chapter 3, rulemaking under the Enabling Act involves the exercise of delegated legislative power. We also note there that, concerned by rulemaking controversies that were fueled by the 1983 amendments to Rule 11 and the 1983 and 1984 proposals to amend Rule 68, Chief Justice Burger was prepared to disengage the Supreme Court from the process. His concern was about the effects of those controversies on the perceived legitimacy of the Court as such. Similar concerns, we suggest, may have contributed to the restraint evident in rulemaking during much of the period following the process reforms of the 1980s. Widespread public perception that the members of the Advisory Committee, including in particular its Article III judge members, are engaged in ordinary politics (Burbank Reference Burbank2007) might not cause them to lose their rulemaking jobs directly. It could, however, bring the process itself into disrepute, putting at risk the major source of the federal judiciary's power to craft rules of procedure. Moreover, if that were to happen, the damage might extend to the public's view of the judiciary – the problem that concerned Burger.

Federal judges (when acting as such, rather than serving as rulemakers) are far more insulated from the forces and incentives of democratic politics than elected officials or rulemakers, which gives the Court greater freedom to act decisively on divisive issues (Graber Reference Graber1993; Gillman Reference Gillman2002). As Mark Graber observes, the Court's electoral insulation and streamlined decisional rules are especially advantageous in pursuit of a policy agenda as to which elements of a potential legislative coalition are internally divided. As we show in Chapter 2, that was true of Republicans in their attitudes towards the Reagan administration's fee-capping bill.

To be sure, as we discuss in Chapter 5, the Court is not immune to public opinion. Its power in the long run – its independence – depends on the continued existence of a well of diffuse support, the depth of which could be adversely affected by a series of unpopular decisions, including in particular decisions perceived to deprive people of rights enjoying broad support. Therein lies the brilliance of the counterrevolution's judicial strategy as implemented by conservative majorities of the Court in the cases that are the subject of Chapter 4. The justices understand that the Constitution's formal protections would not effectively shield the federal judiciary against a concerted attack by an inflamed Congress (Burbank and Friedman Reference Burbank, Friedman, Burbank and Friedman2002). The strategy of retrenching private enforcement of rights, rather than the rights themselves, enables justices who share the goals of the counterrevolution to avoid eroding diffuse support for the Court, even when the decisions in question do not track public opinion, because the public is unlikely to be aware of them.

Third, in an era of divided government and party polarization, the Court has faced less credible threats of statutory override, and correspondingly has enjoyed a wider range of policymaking discretion (Eskridge Reference Eskridge1991a; Eskridge Reference Eskridge1991b; Whittington Reference Whittington2007: ch. 5). With Republicans controlling at least one chamber of Congress nearly continuously since 1994, the prospect of Congress overriding the decisions of a conservative majority of the Court has usually been vanishingly small (Harvey and Friedman Reference Harvey and Friedman2006: 548; Hasen Reference Hasen2012). The growth of the influence of ideology on justices' votes on private enforcement issues, both procedural and non-procedural, after 1994, which we discuss in Chapter 4, is consistent with the hypothesis that the Court has exercised wider policy-making discretion during this period, with the conservative majority pushing the law of private enforcement more assertively in the anti-enforcement direction, eliciting greater opposition from the liberal minority.

The reduced threat of statutory override since 1995 also appears to be salient for proposed amendments to the Federal Rules of Civil Procedure. In Chapter 3, we suggest that this consideration has influenced some leaders who favored the goals of the counterrevolution (including Chief Justice Roberts). Even if sharing the concern about the legitimacy and effectiveness of the Enabling Act process that contributed to rulemaking's restraint throughout much of the period since the 1980s process reforms, we believe that these leaders read the reduced threat of override to mean that legitimacy was a concern that could safely be subordinated to the desire to exercise power. Nor is this surprising. Legitimacy concerns among rulemakers about the Enabling Act process are motivated in part by a desire to maintain control of procedural lawmaking by the judiciary. Threats to a proposed amendment that the Court promulgates, and to the Enabling Act itself, have a common source: Congress.

Finally, the Court's success was fostered by the lower visibility of its retrenchment efforts as compared to those of Congress or the Advisory Committee. A number of scholars have suggested that when potentially controversial issues must be addressed, the judiciary can be a less visible and politically safer policymaking site, lowering the probability of public notice and controversy (Graber Reference Graber1993: 42–3; Frymer 2008: 7, 14). Two inter-related institutional features of courts promote the comparatively low visibility of their decisions relative to legislation and rulemaking: the potential for highly incremental change, and the obscuring effects of legalistic justification.

Courts can (although they need not) move policy very slowly and incrementally over long time-horizons through case-by-case adjudication. The six issue areas in our data encompassed 404 issues. And these are but a subset of a wider constellation of the Court's jurisprudence affecting private enforcement. Moreover, the lower federal courts, inevitably called on to implement these decisions, decided many more cases in the same private enforcement issue domains over the same period. The story of retrenchment of private enforcement by court decision is one of substantial change effected in large part by many comparatively small acts of lawmaking over decades, few of which garnered much public or press attention.

Efforts at legal change through legislation and rulemaking stand in marked contrast. Like the Reagan administration's fee-capping bill, they are often characterized by high levels of policy disjuncture. For legislators or rulemakers to accomplish the level of retrenchment achieved by the Supreme Court, a much smaller number of larger interventions would have been required. In addition, like both the fee-capping bill and the proposals that led to the 2015 discovery amendments, legislative and rulemaking proposals often present (or appear to present) stark alternatives that trigger powerful interest group mobilization and attract press coverage. This increases the probability that they will be obstructed.

A second institutional feature of courts that diminishes visibility concerns the nature of legal justification. Courts benefit from popular “belief that judicial decisions are based on autonomous legal principles” and “that cases are decided by application of legal rules formulated and applied through a politically and philosophically neutral process of legal reasoning,” with outcomes framed in “legalistic” terms dictated by such sources as detailed legal text, legislative history, and precedent. Political scientists call these beliefs “the myth of legality” (Scheb and Lyons Reference Scheb II and William2000: 929; see also Gibson, Caldeira, and Baird Reference Gibson, Caldeira and Baird1998: 345; Ginsburg Reference Ginsburg2003: 32). When courts elect a strategy of incremental and evolutionary change, their opinions will typically frame each step using this style of legal justification. Moreover, survey research suggests that “elite acceptance of [these beliefs] conditions public discourse about the Court” (Scheb and Lyons Reference Scheb II and William2000: 929 (citing Casey 1974)). The media, we believe, likely pay less attention to decisions that they regard as merely applying well-established legal rules of a technical nature.

Congress and the rulemakers (who act in a legislative capacity) are not similarly insulated. A bill or rule proposal to amend existing law, by its explicit form, is a proposal offered to change (or occasionally to clarify) the legal status quo, and cannot feasibly be characterized as dictated by existing law. Moreover, the nature of legislative and rulemaking hearings, convened to evaluate the wisdom and desirability of such changes, frequently will lead to public ventilation of substantive policy tradeoffs implicated by the proposed change – tradeoffs that can be obscured by legalistically framed court decisions. Indeed, we argue in Chapter 3 that one effect of the Enabling Act reforms of the 1980s, which contributed to a more inclusive and participatory rulemaking process, was to diminish the capacity of rulemakers to present consequential rule changes as merely technical. As contrasted with court opinions that use doctrinal and legalistic justifications to present decisions as dictated by existing law, we believe that the products of the legislative and rulemaking processes, where the merits of proposed legal change are openly contested, will receive more attention from the press and the public.Footnote ²

We have been discussing institutional differences between the Supreme Court on the one hand, and Congress and the rulemakers on the other, as they relate to the visibility of their retrenchment efforts. The discussion of the role of legal justification is also important in highlighting how the question of visibility may shape the justices' strategic calculus regarding how best to pursue their agendas. Specifically, we believe that the “hypothesis … that judges … play to public opinion in the visible cases while pursuing their agendas in less visible ones” (Burbank and Friedman Reference Burbank, Friedman, Burbank and Friedman2002: 3) has substantial explanatory power for our work. If the Court's public standing and legitimacy are important to its institutional power (Stephenson Reference Stephenson2004; Friedman Reference Friedman2009; Clark Reference Clark2011), the need for broad public support and concern about negativity bias place some limits on its discretion to scale back highly visible substantive statutory rights directly. From the standpoint of legitimacy, the strategy of focusing on private enforcement issues, particularly those implicated in the Federal Rules of Civil Procedure, is preferable.

Scholarship highlights how, to some degree, judges can strategically tap into the beliefs about the objectivity and neutrality of courts by self-consciously “framing” decisions in legalistic and technical terms (Gibson, Caldeira, and Baird Reference Gibson, Caldeira and Baird1998: 345; Scheb and Lyons Reference Scheb II and William2000: 929). Although we agree that this is true, we believe that it is much more likely in some types of cases than others. As contrasted with substantive merits decisions (where the court may feel constrained by public opinion), decisions focused on private enforcement issues in general, and procedural issues in particular, offer justices more opportunities for technical and legalistic forms of legal justification. They therefore allow justices more effectively to harness beliefs about the objectivity and neutrality of courts, and to deflect attention from substantive policy consequences, minimizing press interest and public attention, and helping to forestall public perceptions that justices are legislators in black robes.

The results we report in Chapter 5 are consistent with this theory. They support our view that a large transformation in law governing or influencing private enforcement resulted from a succession of hundreds of court decisions, distributed over decades, few of which may have appeared monumental in isolation. Focusing on welfare state retrenchment, Jacob Hacker (Reference Hacker2004) has noted that, because of obstacles to overtly retrenching rights and programs with a substantial base of support, developments toward retrenchment in the welfare state have taken the form of strategically chosen “subterranean,” “covert,” and “hidden” processes that often involve lower-visibility decisions of bureaucrats in the course of administering a statute without formally changing it. Similarly, Paul Pierson has suggested that, in contrast with attempting change through legislation at one or a few moments in time, slow-moving and low-visibility historical processes of policy change may be capable of overcoming the obstacles to retrenching rights in a democratic polity. As Pierson puts it, such slow-moving processes of retrenchment may be “invisible at the surface” while producing “long-term erosion” – like “termites working on a foundation” (Pierson Reference Pierson, Pierson and Skocpol2007: 33).Footnote ³

How to Measure Success (and Failure)

We have been careful to specify that success and failure, as we use those terms, relate only to changing law that directly governs or predictably influences private enforcement of federal law. We believe that law matters and that changes in legal rules limiting standing, private rights of action, attorney's fees, damages, and procedural rules such as those governing class actions and discovery, will limit the private enforcement of federal rights. This is especially likely in a legal system in which private enforcement is largely fueled by plaintiffs' attorneys' expectations of being paid from the proceeds of, or on the basis of success in, litigation. The consequences thus should be greatest for plaintiffs least able to pay for legal representation. Although there is surely uncertainty about the effects of this or that change in the law of private enforcement, we feel no uncertainty that hundreds of decisions over more than 40 years restricting private rights of action, standing, attorney's fees, damages, the ability to litigate rather than arbitrate, and access under Federal Rules – cumulatively – have diminished private enforcement of federal rights.

However, the focus of this book has been the substance of law rather than its effects. We have not sought to measure the extent to which lawmakers have actually succeeded in affecting the incidence or qualitative impact of private enforcement of federal rights. Such an undertaking would require another book, and that book might not succeed, for the measurement challenges are monumental. Figure 1.1 shows the growth of private litigation enforcing federal statutes from the late 1960s to the present. Some might be tempted to conclude from it that the Court's anti-private enforcement decisions have not been consequential. However, we caution against this inference. Statistics reporting termination or filing rates are notoriously unreliable for judging how extensively cases are actually litigated (Burbank, Plager, and Ablavsky Reference Burbank, Plager and Ablavsky2012: 23–5). Many influences independent of legal rules can affect whether people seek to enforce rights through litigation, such as economic performance (Donohue and Siegelman Reference Donohue and Siegelman1991; Jacobi Reference Jacobi2009), media coverage of litigation (McCann Reference McCann1992; MacCoun Reference MacCoun2006), and changes in culture and social relations (Friedman Reference Friedman1994; Schudson Reference Schudson1999), among many others. Pinning down the effects of specific causes is difficult. Moreover, we note several confounding features when one seeks to determine the effects of changes in law governing private enforcement on litigant behavior.

The work of Jonah Gelbach shows that measuring the effects on judicial behavior of changes in law with obvious salience to private enforcement (e.g., the Supreme Court's pleading decisions that we discussed in Chapter 4) is inadequate for a well-grounded understanding of the effects of such changes on litigation and those involved in it (2012; 2014). Indeed, Gelbach demonstrates that, even for the limited purpose of assessing changes in judicial behavior, one needs to understand and measure the selection effects that may be induced by legal change. A plaintiff who would have filed a lawsuit prior to the Twombly decision may not do so after Twombly/Iqbal (plaintiff selection effects). A defendant who would not have filed a motion to dismiss prior to Twombly may do so after Twombly/Iqbal (defendant selection effects). And cases that might have progressed through discovery prior to Twombly may settle before discovery after Twombly/Iqbal (settlement selection effects).

Finally, Gelbach (Reference Gelbach2016) demonstrates that, depending on the question to be answered, the task of empirically studying the effects of decisions like Twombly/Iqbal can be even more challenging than his work considering selection effects suggests. That is because, even assuming away the most troublesome selection effects, sophisticated empirical work does not yield, and probably cannot yield, clear answers to some questions that are critical to understanding the effects of private enforcement decisions (i.e., the effects of Twombly/Iqbal on the mix of non-meritorious cases that nonetheless reach discovery, and meritorious cases that should reach discovery but are dismissed). Simply looking at filing rates (or in the case of the Court's pleading decisions, grant rates on motions to dismiss) leaves most questions about the effects of private enforcement decisions unanswered.

A further confounding feature for one studying the federal private enforcement landscape results from the fact that, as we state in Chapter 1, “even during periods of significant Republican legislative power, while calls for retrenchment were emanating from some quarters of the Republican Party, there was net growth in the private enforcement infrastructure.” At the same time that Republicans in Congress were working to retrench private enforcement of some laws through changes to the private enforcement infrastructure, they were sponsoring or supporting (albeit at a lower rate than Democrats) the creation of other private enforcement regimes favorable to Republican constituencies, or at least not inconsistent with their preferences. As we discuss in Chapter 2, the potential tension between those policy stances ripened into conflict when Republican (small business) support for the Equal Access to Justice Act contributed to the failure of the Reagan administration's fee-capping bill.

Aggregate litigation rates do not differentiate between the types of litigation primarily targeted by the forces of retrenchment and the types they favor (or toward which they are indifferent). Thomas Keck describes a similar phenomenon in the domain of constitutional litigation (judicial review), which, as we discuss later in this chapter, we regard as presenting discrete normative questions. Keck emphasizes that “rights-based litigation is rampant on the right as well as the left … The choice faced by movement advocates is not whether to fight for their policy priorities in court or through elected legislatures. The choice, rather, is whether these issues will be brought to court, and hence legally framed, by themselves or by their adversaries” (2014: 242).

This is just one illustration of a more general danger in using aggregate litigation rates to judge the success of retrenchment by the Court. Aggregate rates combine many types of claims and in doing so can mask contrary movement in rates across different fields of law, or even within the same field (Galanter Reference Galanter1988). We provide another illustration by focusing on civil rights. In addition to demonstrating what aggregate litigation rates can conceal, civil rights cases are of particular interest because they constitute a large share of the federal courts' civil statutory docket and have been a critical site of conflict over private enforcement. According to Administrative Office of US Courts data, since 1981, when the counterrevolution began in earnest, civil rights have accounted for an annual average of 21% of federal statutory actions.Footnote ⁴ Over the same period, the civil rights classifications enumerated in Table 4.2 amounted to 36% of the Supreme Court's private enforcement decisions in our data. If we classify all Section 1983 actions – which seek damages for the violation of any federal right by a state officer – as civil rights (as the Administrative Office does), then 43% of the Court's private enforcement decisions since 1981 fall into the civil rights category. What is primarily added by including all Section 1983 actions, in addition to the civil rights categories in Table 4.2, is the subset of Section 1983 actions that are brought to enforce rights under federal social welfare statutes. It is notable that, under this broader definition, from 1981 to 2014 civil rights accounts for more than double the share of the Supreme Court's private enforcement docket than it does of the federal courts' civil statutory docket.Footnote ⁵ Some combination of litigant behavior and Supreme Court decisions to grant review have led to a disproportionate level of Supreme Court attention to private enforcement issues in civil rights cases. This has been true over the period during which the Court has grown ever more likely to limit opportunities and incentives for private enforcement.

Figure 6.1 reflects the population-adjusted annual filing rate for cases classified as private civil rights by the Administrative Office from 1961 to 2014. The smoothed estimates reflect that the rate grew fairly steadily from the late 1960s to the mid-to-late1990s, when it turned and began a 15-year decline to the present. Although private federal statutory litigation rates in general have continued growing over the past 15 years (see Figure 1.1), focusing on aggregate figures conceals the fact that the civil rights litigation rate turned down and declined over that period. This has been the first sustained decline in private civil rights enforcement actions since they began to grow shortly following passage of the Civil Rights Act of 1964, and the reduction has been substantial. >From a high of 16.1 per 100,000 in 1997, the rate declined to 10.9 by 2014, for a net rate reduction of 32%. We do not make a causal claim here about the effects of the Court's decisions. As we have discussed, such claims are fraught with difficulty. However, we do observe that the patterns in this large and important field of federal litigation, which has been a focal point of the Court's private enforcement jurisprudence, are consistent with the hypothesis that the Court's jurisprudence has consequentially curtailed filings.

Figure 6.1 Rate of private civil rights litigation in federal court, 1961–2014

The discussion to this point has focused on the difficulties of measuring “success” and on the Supreme Court's private enforcement decisions that are the subject of Chapter 4. The other side of the coin is, of course, “failure.” In Chapter 2 we describe the experience of the counterrevolution that we chronicle there – by tracking more than 40 years of anti-private-enforcement legislative activity on issues selected because of their obvious importance for that purpose – as largely one of failure. In doing so, we again focus on changes in legal rules. As we discuss in Chapter 2, very few of the bills in our data set were enacted, and, more importantly, very few of those that were enacted involved legal changes of broad import, although bills containing such changes were certainly introduced. Indeed, perhaps the only bills that can properly be so described – those that led to the Class Action Fairness Act of 2005 – facilitated legal change by the judiciary through the development of restrictive class action doctrine.Footnote ⁶

Although we are comfortable with the conclusion that the counterrevolution largely failed in Congress on the metric of consequential changes in legal rules, we note two clarifications. First, in so concluding, we are not making any implicit comparative claim about legislative reform in other policy areas. That is to say, we are not suggesting that the proponents of the counterrevolution fared any worse than others who have sought to retrench rights through legislation. On the contrary, the clear implications of our discussion of institutional influences in Chapter 2 are that legislation in general is difficult to enact and that legislation abridging broadly popular rights is especially difficult to enact.

Second, it appears that for some purposes the existence of introduced bills may be consequential, with the result that failure of enactment cannot properly be deemed failure in terms of those purposes. Tom Clark's work on court-curbing bills (2011) suggests that, even if they have no chance of passage, such bills may serve as signals of public concern or dissatisfaction that prompt the Court to moderate decisions for reasons of institutional maintenance, fearing the erosion of public support. The type of court-curbing bills Clark focuses on frequently concern controversial issues with high public salience, such as abortion, school busing, school prayer, reapportionment, and flag burning. We see no comparable argument in the private enforcement context, however. We show in Chapter 5 that the public receives little information about the Court's private enforcement decisions; we argue that this materially mitigates the constraining effects of justices' concerns about institutional legitimacy and maintenance; and we find that the Court's private enforcement decisions are not correlated with public opinion.

An alternative signaling account might be that the Court was influenced by a signal reflecting the importance of private enforcement issues and the retrenchment agenda to congressional Republicans. As we show in Chapter 4, however, when all cases are viewed together (Figure 4.2), conservative justices led a long and steep decline in the probability of a pro-private enforcement outcome starting from about the time they held a majority of the Supreme Court in the early 1970s, nearly a decade before their ideological compatriots launched the counterrevolution in Congress in the early 1980s. Moreover, our qualitative evidence in Chapter 3 confirms that retrenchment of private enforcement was on the radar of some conservative justices in the 1970s (especially Burger, but also Powell). Not surprisingly, perceived excessive private enforcement litigation was a matter of concern to conservatives on the Court before it became part of the agenda of Republicans in Congress and in the White House. They needed no signal of congressional conservatives' antipathy to private enforcement.

At the same time, focusing on cases most likely to have presented substantial legal questions (those with dissents), the early 1980s was an important turning point on the Court in an anti-private enforcement direction (Figures 4.3 and 4.4). Although justices did not learn about private enforcement issues from Congress, they may well have been cognizant of and influenced by the elevation of private enforcement as the source of a salient partisan cleavage when the Reagan administration began to advocate legislative retrenchment and congressional Republicans quickly followed suit. Indeed, we so suggest in Chapter 3 when discussing Chief Justice Burger's public rhetoric about litigation.

If congressional bill activity constituted such a signal, it must have been reinforced by the Reagan administration's concurrent amicus campaign against private enforcement, which we discuss in Chapter 4. Indeed, political scientists have suggested that federal judges are sometimes attuned to providing assistance, through decisions, to their co-partisans in the elected branches who face difficulty achieving goals through the legislative process (Graber Reference Graber1993; McMahon Reference McMahon2000; Whittington Reference Whittington2005). If this is true, perhaps the legislative retrenchment project had indirect success by accelerating an anti-enforcement trend already underway on the Court by signaling that it had become an important part of the Republican Party's agenda that could benefit from judicial assistance – a “friendly hand,” as Whittington puts it (2005). This, of course, is speculative.

Finally, we note that if there is any signaling story to be told, its effects were, as one might expect, entirely asymmetric. Even assuming liberal justices cared about a signal of Republican displeasure in bills to amend federal statutory law or Federal Rules – perhaps because of a perceived threat of legislative override of a decision or a Federal RuleFootnote ⁷ – they do not appear to have received the messages. As we note in Chapter 4, the probability of a pro-private enforcement vote by liberal justices was stable and high from 1981–2014.

Just as rulemaking under the Enabling Act occupies intermediate lawmaking space, so does our evaluation of the Advisory Committee's work in Chapter 3. We are operating under the same constraints that put measuring the impact of legal change effected by Supreme Court decisions beyond the reach of this book. We conclude that the committee's proposals salient to private enforcement, almost all of which ultimately became law, create a record of what we call modest and episodic success from the perspective of the goals of the counterrevolution. At the least, that judgment reflects the fact that, since 1970, more proposals changed the Federal Rules in ways that predictably would disfavor private enforcement than favor it, and since 2000 the anti-enforcement skew has been very pronounced, with 10 out of 11 proposals disfavoring private enforcement. We note, however, that in the 1970s the Advisory Committee's proposals favored private enforcement, and in both the 1980s and the 1990s there was a relatively evenly balanced mix between the number of pro- and anti-enforcement proposals. It took decades for the Advisory Committee's current clear anti-enforcement cast to emerge.

At various points in Chapter 3 we also offer qualitative judgments about the likely potential effects of the committee's proposals that became law. These include the judgment that, at least after the rulemaking process reforms of the 1980s, the work of the committee has usually lacked the ambition of rulemaking in the 1960s, which, of course, took place under a very different process. We also offer the judgments that the anti-private enforcement potential of the 1980s proposals in that direction “swamped the contrary tendencies of” the pro-private enforcement proposals, and that, in the mix of pro- and anti-private enforcement proposals produced in the 1990s, the potential impact of the latter seems to us obviously more significant. Finally, our account of the 2015 discovery amendments, which resulted from proposals within our study period, suggests that, with encouragement from the Chief Justice and changed leadership on the relevant committees, rulemaking may have entered another period of ambition from the perspective of the goals of the counterrevolution.

Retrenchment and Democracy

Our empirical findings and qualitative analysis raise normative questions. One set of questions concerns how the Court's success in retrenching law governing or influencing private enforcement should be understood from the standpoint of democracy. Here, it is important to emphasize that a majority of the cases in our data involved the interpretation of private enforcement regimes in federal statutes, and that in 79% of the cases, plaintiffs were asserting federal statutory rights. We regard this as an important feature that distinguishes the cases in our study from cases triggering judicial review under the Constitution. The American constitutional tradition, if not the constitutional text itself, enables the federal judiciary legitimately to invalidate majoritarian legislative (and other) actions. Of course, even in the context of judicial review normative democratic concerns are implicated, but they are typically couched as an argument that federal judges should be sparing in their exercise of judicial review, rather than as an argument against judicial review itself (Thayer Reference Thayer1893; Bickel Reference Bickel1962; Ely Reference Ely1980).

The role of courts in statutory implementation, we believe, is a very different normative environment. It is one in which the primary questions concern the appropriate means and methods for implementing ordinary statutory commands where no questions of constitutionality are implicated. The American constitutional order contemplates democratic control of legislative rules. The first clause of the first section of the first article of the Constitution provides that “[a]ll legislative powers herein granted shall be vested in a Congress of the United States.” By design, the Congress, in which the founders lodged “all legislative powers,” is the branch of government most tied to the people – through decentralized geographic representation and periodic elections. Federal judges, by contrast, are appointed and entitled to serve for life absent removal through the impeachment process. In this respect, on the dimension of democratic control and accountability, the Supreme Court is the antithesis of the House of Representatives. Judicial resistance to legislative will is, in our view, more problematic when Article I lawmaking is indisputably constitutional than when there is an appropriate occasion for judicial review. As Judge Robert Katzmann recently observed:

One need not subscribe to naïve or simplistic views of federal courts as wholly beyond democratic control, or of Congress as resembling a New England town meeting, in order to believe that judicial subversion of legislation raises troubling questions from the standpoint of democratic values. We recognize that in countless ways – including several highlighted in the literatures we turn to later in this discussion – federal courts are squarely embedded in American democracy; they do not exist above or outside it. We also recognize that representation in Congress is often parochial, and that some (powerful) interests receive far greater representation and solicitude than other (less powerful) interests. However, in a world painted in shades of grey, one can still discern meaningful variation. Rejection of ideal types – judges who are independent of politics and representatives who are perfectly in tune with and faithful to the preferences of their constituents – need not lead to the view that the Supreme Court is as democratically accountable and responsive as the House of Representatives. To us, such a view is no less preposterous than the ideal types we reject.

As we note in Chapter 5, the “counter-majoritarian difficulty” is among the most enduring debates in American law. There is an enormous literature, which continues to grow, addressing the question whether the Court is responsive to the preferences of the elected branches and to public opinion. This literature reflects a widespread belief, at least among scholars, that serious normative issues of democratic governance would arise if the Court's decisions on important issues of public policy were not associated with the preferences of the elected branches or the public. Although most prominent in work discussing judicial review, these normative issues are, in fact, most salient when federal courts interpret indisputably constitutional statutes.

Federal courts have long faced democratic legitimacy challenges when making important new public policy through the interpretation of statutes. A number of scholars have questioned whether this democratic challenge is well-founded, highlighting how, in many areas in which the Court has been attacked on these grounds, one might better regard it as wielding purposefully delegated legislative power (Graber Reference Graber1993; Lovell Reference Lovell2003; Frymer Reference Frymer2007; see also Salzberger Reference Salzberger1993). Focusing on major Supreme Court interpretations of statutes in the fields of antitrust, labor, and civil rights, this work highlights how Congress intentionally and knowingly failed to resolve foreseeable and controversial issues for strategic reasons, delegating (or punting) policymaking authority to courts.

Read together, this line of work suggests the following explanation for such implicit delegations. In some circumstances, the ruling coalition is internally divided and not capable of coordinating on a specific policy, and yet its capacity to govern would be disrupted by allowing the issue to remain unresolved on the agenda. A majority of legislators may seek electoral or policy benefits from “doing something” in response to public pressures for legislative action, while wishing to avoid the political costs of actually resolving some core controversial issues. Indeed, in some circumstances seeking to resolve important issues could make legislation impossible to pass (Rodriguez Reference Rodriguez1992; Mashaw Reference 259Mashaw1997: 155–6; Lovell Reference Lovell2003). Thus, vague legislation is passed that intentionally empowers courts – and effectively requires them – to legislate through interpretation. From this perspective, regarding the ensuing judicial policymaking as undemocratic is mistaken. Democratically accountable legislators intentionally licensed courts to resolve issues left unaddressed. The existence of a more insulated (unelected, life-tenured) policymaking venue, allowing the resolution of issues that cause the elected branches to seize up, actually facilitates democratic governance rather than frustrating it.

This influential line of work offers an important perspective. However, it serves to highlight, rather than resolve, the normative questions we raise. It is manifestly a rebuttal of critiques of courts as undemocratic founded on the notion that elected officials licensed courts to make controversial decisions. This account does not fit the Court's increasingly assertive anti-private enforcement posture. There is no legislative license for retrenchment through judicial interpretation. To the contrary, the private enforcement infrastructure on which the Litigation State is founded was the product of self-conscious legislative design. The design was animated by the goal of promoting enforcement of statutory mandates.

Scholarship shows that Congress chooses private enforcement for a variety of reasons, including these:

• Presidential Subversion. When Congress is concerned that the president will subvert bureaucratic enforcement of congressional preferences, typically in a period of divided government, Congress is more likely to incorporate private lawsuits, with financial incentives, into implementation regimes as insurance against executive under-enforcement (Melnick Reference Melnick1994, Reference Melnick, Milkis and Mileur2005; Kagan Reference Kagan2001: 48–9; Burke Reference Burke2002: 14–15, 173; Farhang Reference 254Farhang2010, Reference Farhang2012).

• Bureaucratic Drift. Legislative coalitions sometimes lack faith that bureaucracy will enforce legislation aggressively because they perceive bureaucrats as politically timid, apathetic, careerist, and vulnerable to capture. They therefore advocate in the legislative process for private rights of action in court as insurance against bureaucratic failure (Vogel Reference Vogel and McCraw1981; Melnick Reference Melnick, Miller and Barnes2004; Farhang Reference 254Farhang2010: 40–2, 69–70).

• Budget Constraints. Lack of adequate tax revenue, or the political costs of raising it, encourages Congress to achieve public policy goals through private lawsuits because it shifts substantial implementation costs away from the state to private parties. Further, the costs borne by the judiciary are less traceable to particular legislative enactments than appropriations for agencies. This implementation strategy thus can attract a broader support-coalition in a tax-averse political environment (Kagan Reference Kagan2001: 15–16; Burke Reference Burke2002: 15–16; Melnick Reference Melnick, Milkis and Mileur2005; Farhang Reference 254Farhang2010: 154–5).

• Antistatism. In the United States' relatively “antistatist” political culture, reliance on private lawsuits often can attract a broader support coalition than is possible with bureaucratic implementation requiring administrative state-building (Lipset Reference Lipset1996: 21; Kagan Reference Kagan2001: 15–16, 50–1, 193–4; Burke Reference Burke2002: 13–14, 172–3; Farhang Reference 254Farhang2010: 155).

Although this list is not exhaustive, the key point is that the Litigation State has been produced by self-conscious legislative design-choices whose purpose was to mobilize private lawsuits as a central – and often the primary – vehicle of regulatory enforcement. The bulk of the laws were passed by Democratic Congresses distrustful of an administrative state under Republican presidential leadership (Farhang Reference 254Farhang2010). The conservative wing of the Court's campaign against private enforcement has been mounted with the goal of demobilizing those private lawsuits. Rather than carrying out an implicit legislative mandate to make policy choices that Congress sought to avoid (Graber Reference Graber1993; Salzberger Reference Salzberger1993; Lovell Reference Lovell2003), the conservative wing of the Court is better understood as seeking to enfeeble legislative policy with which it disagrees.

As we note earlier in this discussion, there is a second, perhaps more prominent, line of research in political science and law that questions democratic-legitimacy challenges to federal judicial power. As discussed in Chapter 5, numerous political scientists have disputed the proposition that the Supreme Court is unaccountable to the other institutions of government when deciding cases (Dahl Reference Dahl1957; Rosenberg Reference Rosenberg1992; McCloskey Reference McCloskey1994; Peretti Reference Peretti1999; Devins Reference Devins, Miller and Barnes2004). Taken together, this work suggests that federal judges are drawn from, often share the preferences of, and are responsive to pressures by, political coalitions in power in the elected branches, and that the Court therefore does not often stray very far or for very long from what the majority wants. Moreover, as Barry Friedman puts it, “there is general agreement among political scientists, and increasing recognition among legal academics, that more often than not the outcomes of Supreme Court decisions are consistent with public opinion” (Friedman Reference Friedman and Sajó2004: 114; see also Klarman Reference Klarman1996; Epstein and Martin Reference Epstein and Andrew2010 [reviewing political science studies]). If the Court's decisions track what the public wants, the argument goes, this takes the bite out of the counter-majoritarian critique.

This literature provides an important perspective on debates over the extent to which democratic concerns about federal judicial power are warranted. However, it again serves to heighten rather than dissipate the concerns about democratic legitimacy and accountability raised in this book. We argue in Chapter 5 that the oft-observed correlation between public opinion and Supreme Court decision-making is likely explained, in part, by the Court's incentive to maintain institutional legitimacy, and that this incentive is significantly diluted in fields of law with lower levels of public visibility. The Court recognizes that its public standing is not hurt by decisions that the public does not learn about. We show empirically that the public receives dramatically less information about decisions governing private enforcement than decisions addressing underlying substantive rights. We also show that, although the Court's full docket of decisions may be correlated with long-run trends in “public mood,” its private enforcement decisions are not.

Further, this argument against the urgency of the counter-majoritarian difficulty focuses on the preferences of the current coalition in power and the current public that put them there. On Dahl's classic formulation, to the extent that the Court is reflecting the preferences of the current governing coalition as it develops constitutional law when engaging in judicial review, it will be unlikely to do harm to the current majority's governing project by negating the laws they pass. In this sense judicial review does not present a real threat to democracy because the current majority is being allowed to govern through enactment of legislation. Critically, in this literature the successful enactment of legislation is regarded as the core democratic expression of the polity's preferences, and hence invalidation of legislation by an unelected court gives rise to counter-majoritarian difficulty.

The domain that we have investigated in this book is primarily legislative. The normative issues we have raised are rooted specifically in the fact that current governing coalitions were not able to muster the consensus necessary to pass legislation to achieve the counterrevolution's goals, due in part to apprehension concerning how the public would vote in response. We reject the notion – and in fact have never seen it maintained – that when interpreting legislation courts may legitimately privilege the will of a current legislative coalition unable to enact its preferences over the will of an earlier one that was. Although this may be an accurate positive account of what has happened, in our view it provides no normative shelter.Footnote ⁸

The literatures on delegation of policymaking discretion to courts on controversial issues, the Court's responsiveness to the political branches, and the Court's responsiveness to public opinion, all offer responses to normative democratic challenges to certain exercises of federal judicial power. The responses are that the power has been intentionally delegated by democratically legitimate actors seeking to govern, that the Court is exercising the power substantially in conformity with the preferences of the elected branches, or that it is largely giving the public what they want. None of these responses, we believe, accurately describes the Court's private enforcement decisions, and thus they do not mitigate the concerns we have raised.

Although we emphasize here normative questions grounded in democratic values that emerge from the Supreme Court's private enforcement decisions involving statutory interpretation, such questions are not confined to that domain. Chapter 3 raises a number of similar questions about rulemaking under the Enabling Act. We suggest there that the controversies about class actions that arose shortly after the 1966 amendments to Rule 23 might have been avoided had the process that yielded them been more inclusive and transparent. That suggestion, however, speaks to the epistemic foundations of the amendments and, more generally, to whether they represented good public policy, which is a discrete question. It is not clear to us that critiques founded in democratic values, which crystallized as a result of experience with the proposed Federal Rules of Evidence in the early to mid-1970s, can fairly be applied to the 1966 amendments, which took essentially final form in early 1964. Put otherwise, such critiques may suffer from hindsight bias.

When the 1960s Advisory Committee was at work on Rule 23, it was not yet clear that the landscape of federal civil litigation was undergoing a profound transformation, one that would soon fill the federal courts with private lawsuits brought as a result of conscious legislative choices to stimulate private enforcement of federal law. Those choices, we show in Chapter 2, led to the birth of the counterrevolution in the first Reagan administration. It was not until the political and ideological valence of private enforcement became apparent that questions about democratic values in rulemaking, presaged in debates about the proposed Federal Rules of Evidence, became obvious and insistent. It was this democratic deficit, in part, to which the 1980s reforms were addressed, seeking to make rulemaking more open, accessible, and susceptible to congressional oversight.

The same dispensation is not available, however, for the Supreme Court decisions we discussed in Chapter 4 – Twombly/Iqbal (pleading) and Wal-Mart (class actions) – that effectively amended Federal Rules under the guise of interpretation. Although the costs of such decisions in terms of democratic values are less obvious than the costs of the Court's private enforcement decisions that subvert statutory policy choices, they are hardly insignificant (Burbank Reference Burbank2009; Burbank and Subrin Reference Burbank and Subrin2011). As we point out in Chapter 4, in Ortiz v. Fibreboard Corp.,Footnote ⁹ the Court provided an interpretive criterion “for distinguishing permissible judicial interpretation of Federal Rules from impermissible judicial amendment of them outside the legislatively mandated Enabling Act process. In order to protect that process, the statute's limitations on rulemaking, and the power it accords Congress to review and, if it so desires to block, prospective procedural policy choices, the Court disclaimed the freedom to treat as mere interpretation (or reinterpretation) giving meaning to a Federal Rule that is different from the meaning the Court understood ‘upon its adoption.’”Footnote ¹⁰ By failing to engage that criterion in the cases in question, the Court was able to accomplish under Article III results that would have been, or had already proved to be, unattainable through legislation or the delegated legislation of rulemaking, which prompted us to call them the “new undemocratic legislation” (Burbank and Farhang Reference Burbank and Farhang2014: 1603).Footnote ¹¹

In Chapter 3 we also observe that whether the difficulty of making major changes to the Federal Rules affecting private enforcement since the reforms of the 1980s “is counted a benefit depends on one's normative views about the need for, or the desirability of, major changes, and about the appropriate relationship between court rulemaking and legislative policy concerning private enforcement.” Recognition that the Court's Federal Rules decisions circumventing the Enabling Act process may have been motivated by its perception that the changes sought were unlikely to be achievable through rulemaking may complicate the normative question as to the legitimacy of the decisions. Some may regard amendment through interpretation as more justifiable in the face of inaction by a rulemaking process with a heavy institutional bias toward the status quo. But in our view it does not change the answer.

To be sure, it would be ironic if the 1980s rulemaking process reforms, which were designed in part to make Federal Rules more democratically legitimate and more deeply grounded in evidence, contributed to Supreme Court decisions that are neither. It would be equally ironic if one focused on the apparent purpose of some interest groups and legislators who were involved in the 1980s lawmaking process to insulate the (pro-private-enforcement) status quo. Whatever one may conclude generally about the normative trade-offs when major procedural change is deemed necessary but is difficult or impossible to obtain through rulemaking, however, respect for democratic values requires that existing statutory policy choices concerning private enforcement be respected. It therefore requires that changes to Federal Rules that are potentially consequential for those policy choices be affected through rulemaking rather than (re)interpretation.

Only in that way can Congress be provided the opportunity to review, and if deemed appropriate to block, proposed policy choices before they become effective. This opportunity assumes special importance because of the Enabling Act's supersession clause, under which a valid Federal Rule supersedes pre-existing statutory law with which it is inconsistent (Burbank Reference Burbank1986: 437). Amendment of a Federal Rule through reinterpretation permits five justices to change federal law that was developed pursuant to a process prescribed by Congress and that was previously presented to Congress for potential override when the understanding of its meaning was different. If the Federal Rule postdates federal statutory law with which, as reinterpreted, it is inconsistent, the supersession clause directs that the reinterpreted Federal Rule applies.

Moreover, only through the prescribed rulemaking process can law with obvious implications for private enforcement be made on the basis of an evidentiary record, and on a base of public participation, sufficient to augur wise public policy. As John Roberts wrote when he was in the Reagan Justice Department seeking retrenchment through legislative channels:

More recently, Judge Anthony Scirica, who played a prominent role in rulemaking described in Chapter 3, observed:

Other Normative Questions

Finally, we take up two other, related, normative questions that arise from our study of rulemaking in Chapter 3. We have noted that Chief Justice Burger was willing to extricate the Court from the Enabling Act process in the early 1980s because of the threat that rulemaking controversies posed to the perceived legitimacy of the Court as such. That stance was probably easy for him to take because of the minimal role (other than symbolic) that the Court plays in the process of formulating the content of the Federal Rules and in exercising independent judgment about their promulgation.Footnote ¹⁴ More importantly, Burger knew that he would not thereby surrender the real source of power: appointments to the rulemaking committees. Our data on the appointments that Burger and his successors have made to the Advisory Committee raise (at least) two troubling questions, both concerned with imbalances among the members of the committee that at times have been extreme.

In Chapter 3, we present data on the mix of practitioner members. Acknowledging the limitations of our data, we observe quite consistent dominance of lawyers who represent primarily businesses and corporations. We acknowledge that the trends we perceive may, to some extent, reflect larger trends in practice toward an increasing share of the bar working in business and corporate practice that scholars studying Chicago lawyers have documented. We note, however, that, even if representative of large city practice, the Chicago bar may differ from the bar in other locations where federal litigation occurs, and we point out that it does differ in that regard with respect to solo practitioners.

As a normative matter, this is not, of course, to suggest that the Chief Justice should search for solo practitioners to appoint to the Advisory Committee. Most of them probably lack, if not the requisite expertise in federal litigation, then the time for what is a demanding volunteer position. The latter consideration might also be daunting for members of very small public interest law firms with limited resources. Yet, in Chapter 3 we also note studies demonstrating “growth in the number, size, and budgets of public interest law firms.” Given the importance of such firms (across the ideological spectrum) to private enforcement, and the recurrent questions about the impact of rules proposals on congressional policy in that domain that have arisen in recent decades, one can question the absence of non-profit public interest lawyers on the Advisory Committee.

More generally, even if we are approaching a national bar in important swaths of federal litigation, a more heterogeneous practitioner group on the Committee (including more lawyers who represent individuals rather than classes) might diminish the phenomenon of Federal Rules that are crafted to address problems in high-stakes, complex cases being applied in simpler cases for which they are manifestly unsuited. This is a cost of transsubstantive procedure to which the trends in practitioner membership on the Advisory Committee that we document may contribute (Burbank Reference Burbank2009; Thornburg Reference Thornburg2016).

There may also be concern on that score as a result of evidence that, in both 1975 and 1995, Chicago lawyers “were considerably more supportive of big business than was the general population” (Heinz et al. Reference Heinz, Nelson, Sandefur and Laumann2005: 200). The same scholars suggest that the “increase in the lawyers' expression of support for big business may correspond to the change in their clientele,” noting that the “lawyers' views, sharply divided even on fundamental issues concerning the virtues of the free market, appear to be generally congruent with those of their clients” (200–01; see Gordon Reference Gordon2003: 1191; Galanter and Henderson Reference Galanter and Henderson2008). This work suggests that business/corporate attorneys are inclined to identify with and support business interests, which are a primary target of private enforcement.

Readers of this book are likely to be more surprised by the imbalances in the appointment and service of Article III judges on the Advisory Committee that our data very clearly establish. Without reference to data, James Pfander has suggested that “[w]hatever the validity of the attitudinal model in this (or other) contexts, the specter of a politicized appointments process will linger as long as the Chief Justice makes the appointments himself” (2013: 1135). Since the reconstitution of the Advisory Committee in 1971, a series of Chief Justices, all of whom were appointed by Republican presidents, have not only ensured that Article III judges dominated the committee. They have ensured that a greatly disproportionate share of those appointments went to judges who were themselves appointed by Republican presidents. Moreover, they have ensured that an astonishingly disproportionate share of appointments as chair of the committee, a powerful position because of the chair's ability to influence if not control its agenda, went to judges appointed by Republican presidents.

We do not believe that this imbalance makes a difference for the great majority of the committee's work. As discussed in Chapter 3, however, we expect ideological differences about the content of Federal Rules to surface precisely in that part of the landscape of litigation procedure where ideological and political valence has been inescapable since the birth of the counterrevolution in the first Reagan administration – private enforcement of federal law – and in the terrain with which it merged not long thereafter, the project of tort reform. In addition, it is difficult to escape the possible influence on the current Chief Justice's appointments to the Advisory Committee (as well as the Standing Committee) of the personal ideological preferences that animated his role in the birth of the counterrevolution. As we show in Chapter 2, that role included advocating for an attorney's fee-capping bill that others in the administration regarded as politically dangerous, and initiating legislative proposals to dilute Section 1983, one of the most important civil rights statutes, and one that can only be enforced by private plaintiffs. Our data revealing Chief Justice Roberts as one of the most anti-private enforcement justices in over 50 years do not suggest that his preferences have changed. Nor, of course, does his encouragement to move ahead with rulemaking in an area of intense controversy (discovery) or, once amendments in that area became effective, his decision to use the Chief Justice's entire 2015 annual report on the federal judiciary to emphasize his view of (or hopes concerning) their importance and to support training designed to make sure they are effective.

Scholars have observed that justices may serve long after the party of the president who appointed them has lost the presidency, Congress, or both, which has the potential to undermine democratic control of policymaking through periodic elections (e.g., Calabresi and Lindgren Reference Calabresi and Lindgren2006: 809–13; but see Burbank Reference Burbank2006b). When one considers the power of Chief Justices to appoint all members of Judicial Conference committees, and to make many other significant appointments (Ruger Reference Ruger2004; Reference 262Ruger2006; Reference Ruger2007; Resnik and Dilg Reference Resnik and Dilg2006), the lag assumes greater importance, particularly if one believes that Chief Justices wish to, and can effectively, time their retirements to facilitate ideological succession. In the case of the Chief Justice, then, the size of the gift that keeps giving long after regimes have changed is bigger than is usually recognized. If one concludes on the basis of our quantitative and qualitative research that it is too big, a number of reform strategies might be considered. We briefly discuss two of them.

One strategy would be to change the locus of the power to make appointments to all Judicial Conference committees that participate in the exercise of delegated legislative power under the Enabling Act.Footnote ¹⁵ Article II of the Constitution empowers Congress to vest the appointment of “inferior” officers in the President acting alone, in the heads of departments, and in the “Courts of Law.” James Pfander has suggested that membership on rulemaking committees may be “the sort of inferior office that the Court itself must oversee,” as opposed to the Chief Justice alone (2013: 1179). The Supreme Court as a whole appointed the original Advisory Committee in 1935.Footnote ¹⁶ Congress could by statute restore the original system, extending it to include all of the Conference's rulemaking committees. Objections are predictable, but so long as Congress did not seek to regulate other Judicial Conference committees (i.e., those not involved in rulemaking) in this respect, arguments founded in inherent judicial power or separation of powers should fail (Burbank: Reference Burbank2004a).

The Chief Justice would have a hefty advantage even in such a new system because of the involvement of the Administrative Office of US (AO) Courts in gathering/screening the names of potential members. More generally, the Chief Justice would have an advantage unless the Court delegated front-line responsibility to a committee of justices, which would control the agenda and, for this purpose, monitor the relevant activities of the AO.Footnote ¹⁷ Even if the Chief Justice retained leadership, however, collective responsibility might encourage at least those justices who were interested to develop alternative sources of prospective members and to monitor the Chief Justice's suggestions.

Instead of, or in addition to, altering the locus of appointment power, Congress could seek to prevent imbalances that it regarded as salient by prescribing appointment criteria. Perceived imbalances in the composition of the rulemaking committees were central to some of the critiques of rulemaking in the 1970s, and they were a prominent source of criticism at the 1983 and 1984 House Hearings, both of which we discussed in Chapter 3. The House addressed the matter to a limited extent in the bill that was the foundation of the 1988 amendments to the Enabling Act. A requirement that “[e]ach such committee shall consist of a balanced cross section of bench and bar, and trial and appellate judges” was part of the House bills that passed in 1985 and 1988.Footnote ¹⁸ The provision was not part of the 1988 legislation, however, which substituted the language in the Senate bill: “Each such committee shall consist of members of the bench and professional bar, and trial and appellate judges.”Footnote ¹⁹ Of course, the effect of deleting “a balanced cross-section” was to give judges double (or triple) billing. It is significant, nevertheless, that a reform of this type has been on the legislative agenda before.

We are uncertain whether statutory requirements of this sort could be sufficiently prescriptive to have much impact. To be sure, some progress might be made redressing the imbalances among practitioners that prompt the normative concerns we raise earlier in this chapter – if, for instance, Congress required that certain rulemaking committees include lawyers who represent primarily individuals and/or plaintiffs and lawyers from non-profit public interest law firms (again recognizing that such firms span the ideological spectrum). Yet, even if Congress required that the committees comprise specified numbers or percentages of judges, practitioners, and academics – or established acceptable ranges – so long as one person appointed the members, and if that person privileged ideology in making such appointments, other normative concerns raised here would remain. Indeed, even if Congress required a specified mix of Article III members appointed by presidents of different parties (Stempel Reference Stempel2001: 248–9), our (anecdotal) evidence suggests that a sufficiently determined and strategic Chief Justice could find individuals whose preferences were congenial. If this is true, it suggests that specification of criteria seeking balance on salient dimensions would be most effective in conjunction with, rather than as an alternative to, moving the appointment authority from the Chief Justice to the full Court.

Apart from the question of efficacy, the judiciary would vigorously oppose legislation of this sort, and the opposition would likely be most intense if it were proposed to require a mix of Article III judges appointed by presidents of different parties. We understand the sources of discomfort that (non-strategic) opposition to such a proposal would reflect, which have to do with the awkwardness of Article III judges acknowledging the pertinence of ideological preferences to their appointment or performance of their duties as judges, and their consequent reluctance to be part of a public controversy perceived as political, let alone partisan, when acting as rulemakers. We also understand, therefore, that a distinction between judging and rulemaking would provide insufficient comfort.

We are left where we were when responding to the Chief Justice's call – in his 2015 annual report about discovery – “to ensure that our legal culture reflects the values we all ultimately share.” As we observed at the end of Chapter 3, “[i]f the data on decisions interpreting Federal Rules that we present in Chapter 4 tell us anything, it is that, when those rules have obvious implications for private enforcement, shared values have become increasingly hard to find.” At the end of the day, appointment by the Court as a whole may be the best way to submerge the sources of discomfort that Article III judges may feel when asked to acknowledge what these data demonstrate clearly: When procedure is a source of power to determine whether rights are enforced, the influence of ideology cannot be denied.