David Fontana

Docket Control and the Success of Constitutional Courts

This chapter, an invited contribution to a compendium on comparative constitutional law, argues that giving courts the power of docket control can contribute to their power and success. To make this point, this chapter surveys the experiences of several emerging and established constitutional democracies. Deciding what cases to decide permits a court to issue the right decisions at the right times, what this chapter calls ‘issue timing.’ A court can avoid encountering an issue until the country is ready to discuss the issue, and perhaps ready to resolve the issue in the manner the court is contemplating – or the court can decide to avoid the issue altogether because the issue is too polarizing for the court to encounter. As part of this ‘issue timing’ is what this chapter calls ‘legitimacy timing,’ meaning giving the court the power to decide what to decide allows courts both to initially create and then later maintain their legitimacy, even in situations when political forces might not support the specific outcome ordered by the court. Courts create and maintain their institutional legitimacy by giving political forces and the public time to adjust to a newer style of institution – a judicial institution – deciding leading issues of the day. But there is also a quantitative benefit to docket control, one related to legitimacy timing and the general politics surrounding courts. Giving courts docket control permits them to limit the sheer number of major issues they are deciding, which permits them to avoid excessive political fights, and gives them an agenda control power that allows them to compete on more equitable terms with the other branches of government, which do have agenda control.

Thomas Jefferson Counts Himself into the Presidency

The Constitution instructs the President of the Senate to open the ballots submitted by members of the Electoral College, but it provides little guidance when a ballot turns out to be defective. This article provides the first in-depth consideration of two early precedents. Both Vice-President John Adams and Vice-President Thomas Jefferson confronted problems when counting the electoral votes in 1797 and 1801, respectively. Both men were placed in the awkward position of ruling on matters involving an election in which they were leading presidential candidates, but Jeffersons problem was more serious. In 1801, Georgias electors cast their votes for Jefferson and Burr, but their ballots were in plain violation of the Constitutions explicit formal requirements. If Jefferson had ruled these votes invalid in his capacity as Senate President, one of the Federalist candidates, Adams or Pinckney, might well have emerged victorious from the House runoff required under the Constitution. But Jefferson used his authority as Senate President to exclude his Federalist competitors, restricting the runoff to a two-man race between himself and Aaron Burr. This allowed him to emerge victorious on the thirty-sixth ballot. Rumors of this episode occasionally surfaced during the nineteenth century, but this article presents indisputable documentary evidence demonstrating the irregularity of the Georgia ballot. After telling the story, we appraise its significance both as an act of constitutional statesmanship and as an enduring legal precedent that may guide future Senate Presidents as they confront the electoral college crises of the twenty-first century.

Cooperative Judicial Nominations During the Obama Administration

This Essay, written for a symposium hosted by the Wisconsin Law Review on judicial nominations, analyzes the failures of some of the tactics used on judicial nominations during the eight years of the Obama Administration. This Essay argues that the roots of these failures to do more on judicial nominations during the Obama Administration reside in a common tactical error made by political leaders in the Democratic Party: excessive cooperation with political forces that do not manifest the same behavioral patterns of cooperation. In addition to the tactical argument, this Essay has a taxonomical goal. Judicial nominations are a unique field of political activity, in which a series of more aggressive political strategies have emerged yet have not previously been identified and described. I label these three tactical tools as naming, numbing, and numbers. Naming means an Administration selecting nominees that identify their jurisprudential perspective with a particular frame — such as originalism — and promoting these nominees by also using that name. Numbing means the open consideration and/or selection of unusually provocative judicial nominees that generate political extremeness aversion. The political system is distracted from other nominees by the controversial political or actual nominee, and other nominees are framed as less controversial because their views are distorted by comparison to the controversial potential or actual nominees. Numbers refers to the simultaneous nomination of a large number of judges to the federal bench. The volume of nominees precludes the opposition from being able to direct resources towards a critical mass of nominees, and also generates political pressure to confirm a critical mass so as to avoid being labeled as obstructing the Senate. For both the tactical and the taxonomical, the goal is to take a step back from the day-to-day politics of judicial nominations to make some larger, more theoretical observations about the eight years of judicial nominations by the Obama Administration that will shed some light on potential tactics during later presidencies.