Judicial Decisionmaking Archives – Southern California Law Review

Major Questions Avoidance and Anti-Avoidance

October 2025October 2025Daniel J. Hemel*

In recent years, the Supreme Court has articulated a new “major questions” doctrine that prescribes a heightened standard of judicial scrutiny for regulations that address questions of vast economic and political significance. This jurisprudential innovation incentivizes—indeed, practically invites—strategically minded agencies to engage in “major questions avoidance”: to modify their regulatory approaches in order to skirt the major questions doctrine’s consequences. This Article is the first to name the phenomenon of major questions avoidance and to develop a taxonomy of avoidance tactics. It identifies four broad categories of major questions avoidance: “slicing” a single rule into a series of smaller rules; “lumping” together regulations under different statutory authorities to achieve a common, far-reaching objective; “glossing” over a major rule in technocratic language that downplays its economic and political significance; and “bypassing” the rulemaking process via guidance documents, administrative adjudications, and enforcement actions. Agencies appear to be deploying various major questions avoidance tactics already—openly in some cases and subtly in others. Although each of these avoidance tactics is costly to pursue, agencies are likely to engage in major questions avoidance—at least some of the time—as long as the major questions doctrine remains a salient feature of the administrative law landscape.

The nascent phenomenon of major questions avoidance presents both normative and jurisprudential puzzles. Different normative theories of administrative state legitimacy lead to contrasting conclusions regarding the desirability of major questions avoidance. If major questions avoidance is a problem, courts could—in theory—try to solve it by developing new doctrines of “major questions anti-avoidance.” Yet these anti-avoidance doctrines will face their own set of logical and logistical challenges—challenges that underscore the limits of judicial power in the cat-and-mouse game between courts and strategically minded agencies. Ultimately, a clear conceptual mapping of major questions avoidance and anti-avoidance can shed new light not only on the major questions doctrine itself but also on the justifications for, constraints on, and adaptability of the modern administrative state.

Introduction

One of the first lessons that students learn in law school is the concept of “question size elasticity.” Law school instructors rarely (if ever) use the term “question size elasticity,” but they almost inevitably illustrate the concept starting on Day One. For example, when teaching Vosburg v. Putney,¹ the first case in many torts casebooks,² professors often divide the central question—whether intent to harm should be a required element of the tort of battery—into a series of sub-questions (for example, whether intent to harm should be a required element when the alleged battery occurs in a touch football game, or on a crowded subway, or—as in Vosburg—in a seventh-grade classroom).³ Going in the opposite direction, professors often show how a seemingly self-contained doctrinal question such as the question presented in Vosburg implicates much larger questions about the structure of society (for example, how to mediate between conflicting interests in economic efficiency and bodily autonomy). By the end of their 3L year, students may not remember the particulars of the cases that they read as 1Ls, but if they were paying even a modicum of attention, they will have learned how to slice a big question into lots of littler ones and how to transform a superficially small question into a much more expansive inquiry.

The concept of question size elasticity, applicable in many legal contexts,⁴ takes on particular relevance in the context of the “major questions” doctrine, possibly the most consequential new doctrine to emerge in U.S. administrative law so far this century.⁵ The doctrine—which prescribes a heightened standard of judicial scrutiny for agency rules that implicate questions of particular economic and political significance—played a central role in four blockbuster Supreme Court cases during the Biden presidency. These four decisions—in which the Court overturned a nearly nationwide eviction moratorium,⁶ struck down a COVID-19 vaccine mandate for more than 80 million U.S. workers,⁷ stripped the Environmental Protection Agency of authority to carry out its Clean Power Plan,⁸ and blocked the Department of Education from forgiving $430 billion in federal student debt⁹—affect broad swaths of the American population and American life.¹⁰ The doctrine continues to rear its head in dozens of lower court cases and is almost certain to return to the Supreme Court soon, likely leading to the invalidation of additional agency actions.¹¹

When applied to the major questions doctrine, the concept of question size elasticity generates a number of, well, major questions. First, as a predictive matter: if a major question can be split into a series of minor questions, will agencies seek to avoid the doctrine’s consequences by slicing what would otherwise be “major” rules into smaller bits and pieces? We might call this slicing method—along with other tactics to evade the major question doctrine’s reach—“major questions avoidance.” Second, as a normative matter: if some agencies do engage in major questions avoidance at least some of the time, should we, as citizens, applaud those agencies’ avoidance tactics? Put another way, is major questions avoidance a salutary phenomenon—either as a desirable “workaround”¹² to circumvent an otherwise undesirable doctrine or as exactly the sort of agency behavior that the major questions doctrine is supposed to incentivize? Or, to the contrary, is major questions avoidance a pernicious administrative tactic that agencies ought to eschew for the public good? And third, as a jurisprudential matter: to the extent that major questions avoidance is undesirable, how—if at all—should courts police the practice? Should courts construct a doctrine of major questions anti-avoidance in administrative law, just as courts have—for example—developed anti-avoidance doctrines to defend the integrity of federal tax law? And if so, what shape might a doctrine of major questions anti-avoidance take?

Rigorously thinking through the relationship between major questions avoidance and anti-avoidance can provide fresh perspectives on the major questions doctrine itself—and, more broadly, about the relationship between the judiciary and the administrative state. According to one view, well expressed by the legal scholar Blake Emerson, the Supreme Court’s invocation of the major questions doctrine “is not legal interpretation at all, but rather an exercise of raw political power.”¹³ In a similar vein, Josh Chafetz characterizes the major questions doctrine as a central element of what he calls “the new judicial power grab.”¹⁴ This Article—though agnostic about the desirability of the doctrine¹⁵—suggests another possible slant on the doctrine’s power implications. When we consider potential agency responses to the major questions doctrine—along with the enormous difficulties that courts will face in policing those workarounds—our takeaway may be that the doctrine, if a judicial power grab, is one with surprisingly infirm grip. In other words, the major questions doctrine—though cited by critics as a signal example of creeping “juristocracy”¹⁶—may, at the end of the day, reveal as much about judicial power’s limits as about its reach.

Part I of this Article provides a brief overview of the major questions doctrine and defines the concept of major questions avoidance. Part II considers whether, when, and why agencies may (or may not) choose to engage in major questions avoidance. Part III evaluates major questions avoidance from a normative perspective, showing how four different theories of the administrative state’s legitimacy lead to very different conclusions regarding major questions avoidance. Part IV looks forward to the next move in the chess game between agencies and courts, asking whether and how courts can construct a doctrine of major questions anti-avoidance. Along the way, the analysis highlights the difficulties that even an ideologically motivated judiciary will face if it seeks to prevent administrative agencies from resolving questions of vast economic and political significance.

I. The Major Questions Doctrine and Major Questions Avoidance

A. The Major Questions Doctrine(s)

For years, a popular parlor game among administrative law scholars involved counting the number of Chevron steps. As formulated by Justice Stevens in the 1984 case that gave the Chevron doctrine its name, judicial review of agency statutory interpretation is a two-step process: is the statute ambiguous (Step One) and, if so, has the agency adopted a “permissible construction of the statute” (Step Two)?¹⁷ Thomas Merrill and Kristin Hickman later argued that in practice, an additional step precedes Steps One and Two—Chevron “Step Zero”—at which courts determine whether an agency’s statutory interpretation is even eligible for Chevron deference.¹⁸ William Jordan interpreted the Supreme Court’s decision in United States v. Mead Corp.¹⁹ as “erect[ing] a new four step test to replace what we once knew as the Chevron two step.”²⁰ Matthew Stephenson and Adrian Vermeule responded with an article provocatively titled: “Chevron Has Only One Step.”²¹ Aaron Nielson and I argued that courts have created a half-step between Steps One and Two—what we called “Chevron Step One-and-a-Half.”²² Judges got in on the Chevron step-counting exercise, too.²³ Much fun was had by all.

With the Chevron doctrine now dead²⁴—or at least, “mostly dead”²⁵—counting the versions of the major questions doctrine is the newest administrative law numbers game. Cass Sunstein has argued that there are actually two major questions doctrines.²⁶ Jody Freeman and Matthew Stephenson count three different iterations.²⁷ Louis Capozzi writes that after West Virginia v. EPA, the 2022 Clean Power Plan case, “[t]here is one version of the major questions doctrine” still standing.²⁸

In all of its iterations, the major questions doctrine applies more searching judicial review to “agency decisions of vast ‘economic and political significance.’ ”²⁹ The various versions of the major questions doctrine differ in what that more searching review entails. In one version, the “majorness” of an agency’s assertion of statutory authority is a factor weighing against that reading.³⁰ This version of the major questions doctrine evokes Justice Scalia’s statement that Congress “does not . . . hide elephants in mouseholes”³¹—that an interpretation of a statute is less plausible if it ascribes extraordinary consequences to “vague terms or ancillary provisions.”³² In a second version, the majorness of an agency decision was a reason for courts to deny Chevron deference and interpret the relevant statute de novo. This version³³—which was on clearest display in the Supreme Court’s 2015 King v. Burwell decision³⁴—faces an uncertain future in a post-Chevron world.³⁵ In a third version, majorness is a reason to reject an agency’s interpretation of a statute unless Congress has issued a “clear statement” authorizing the agency’s assertion of power.³⁶ Freeman and Stephenson describe this third, “most aggressive” version of the major questions doctrine as a “novel judicial innovation” that had not been embraced by the Supreme Court until West Virginia v. EPA in 2022.³⁷

All of these versions require courts to somehow distinguish major questions from minor ones. None of the Supreme Court’s cases give concrete guidance on the ingredients of majorness, though they do provide potentially instructive examples. In cases where it has found a question to be major, the Court has cited—among other factors—the population of people affected,³⁸ the amount of money at stake,³⁹ the rule’s geographic reach,⁴⁰ and the number of sectors that could be affected by the agency’s interpretation.⁴¹ Other factors cited by the Court in major questions cases include whether the

rule finds precedent in past agency practice⁴² and whether the rule lies within the agency’s “sphere of expertise.”⁴³

The emphasis in major questions cases on the scope of the challenged regulation raises a possibility that scholarship has only begun to probe: if the majorness of an agency interpretation depends, in part, on the number of people, industries, or regions affected by the relevant rule or by the rule’s dollar-denominated costs, can an agency duck the major questions doctrine by slicing a larger rule into smaller bits and pieces?⁴⁴ Although the Court has never stipulated a specific population threshold, dollar threshold, or other numerical criterion for majorness, its major questions cases so far indicate—and common sense would suggest as well—that smaller-in-scope rules are less major than larger rules. And in the major questions doctrine era, rules that do not implicate the major questions doctrine would seem to have a better chance of surviving judicial scrutiny than rules that do.

B. Major Questions Avoidance

Just as the major questions doctrine comes in multiple flavors, major questions avoidance does too. Broadly, “major questions avoidance” refers to any tactic by which an agency changes the form or substance of its regulations in order to avoid the application of the major questions doctrine while achieving similar—though not necessarily identical—results. We can divide the broad category of major questions avoidance into at least four subcategories: “slicing,” “lumping,”⁴⁵ “glossing,” and “bypassing.” This Section considers each in turn.

“Slicing”

“Slicing” refers to a type of major questions avoidance in which an agency divides a larger rule into several smaller ones. For example, when the Centers for Disease Control and Prevention (“CDC”) restricted evictions during the COVID-19 crisis, the agency engaged in a form of temporal slicing: it issued a series of time-limited eviction prohibitions with durations of one,⁴⁶ two,⁴⁷ three,⁴⁸ and four⁴⁹ months. It was only after the fifth iteration of the CDC’s moratorium that the Supreme Court struck down the agency’s action, stating that “the sheer scope of the CDC’s claimed authority” required a clear authorization from Congress.⁵⁰

Time is not the only dimension along which agencies might “slice.” Agencies also might slice geographically. For example, instead of issuing a single rule for the entire country, the CDC could have promulgated a series of geographically limited, temporally overlapping moratoria with a combined effect approaching—if not equaling—a nationwide rule.⁵¹ Alternatively, agencies might slice by industry. For example, the Occupational Safety and Health Administration—instead of issuing a vaccination and testing rule for nearly all private employers with at least one hundred employees⁵²—could have issued a series of industry-specific rules that, in the aggregate, reach most or all sectors of the economy. The Environmental Protection Agency (“EPA”) arguably engaged in a form of industry slicing in early 2024 when it split its greenhouse gas emissions limits for existing coal-fired and natural gas-fired power plants into two rules—proceeding immediately with the rule for existing coal plants while stating that it would delay the rule for existing gas plants for at least several more months.⁵³

Slicing can theoretically result in total or partial avoidance of the major questions doctrine. Imagine, for example, that an agency wishes to apply a single rule, R, to twenty-six industries labeled A through Z. Total avoidance would occur if the agency issues twenty-six identical versions of rule R, each for a single industry, and all pursuant to the same statutory authority. Partial avoidance could occur if the agency modifies the rule for each industry such that rule R_a applies to industry A, R_b applies to industry B, and so on, all the way through R_z for industry Z, where all of these industry-specific rules are substantively similar but none are carbon copies of each other. Partial avoidance also might occur if the agency applies rule R to some subset of industries—perhaps to A, C, and E but not B, D, and F—with the upshot that a large slice but not all of the economy is covered by R. Thus, partial avoidance allows an agency to achieve much of—though not all of—what it would have sought to achieve in the absence of the major questions doctrine.

Concededly, the slicing subcategory is blurry around the edges. At what point does an agency’s response to the major questions doctrine cease to be “avoidance via slicing” and simply become a downsizing of the relevant rule? For example, if an agency wishes to impose rule R on industries A through Z but—fearing the major questions doctrine—settles on applying rule R to industry A alone, then the agency has not “avoided” the major questions doctrine at all; the agency has been thwarted. There is no clear line between A and Z at which frustration turns into partial avoidance. In this respect, major questions avoidance is as fuzzy as the majorness element of the major questions doctrine itself.

Even though slicing—at least when it results in partial avoidance—may be difficult to distinguish from frustration, slicing still can be a useful concept. For our purposes, “slicing” occurs when an agency issues a series of narrower rules pursuant to the same statutory authority. As we shall see, this feature—multiple rules pursuant to the same authority—serves to distinguish slicing from its closest cousin: “lumping.” The import of the distinction between slicing and lumping—though it may seem pedantic at this juncture—will become clearer when we consider potential judicial countertactics in Part IV.

“Lumping”

“Lumping” refers to a type of major questions avoidance in which an agency promulgates multiple rules pursuant to different statutory authorities to reproduce the effect of a single rule that, if it had been issued on its own, would or could have implicated the major questions doctrine. In other words, the agency “lumps” together several different regulations under different statutory delegations to achieve a common policy goal that—if pursued in a single rule under a single statutory authority—would have risen to the level of majorness. Lumping, as we will see, is a strategy that agencies undoubtedly pursued to circumvent the major questions doctrine under the Biden administration. Whether it will continue under the second Trump administration is—as of this writing in early 2025—not yet clear, as all except the most obvious cases of lumping will be very difficult to detect.

The clearest example of lumping from the Biden years is the Department of Education’s response to the Supreme Court decision to block the cancellation of $430 billion in student loan debt.⁵⁴ In its first stab at large-scale debt cancellation—the effort thwarted by the Court’s 2023 decision—the department relied on language in the Higher Education Relief Opportunities for Students Act of 2003 (“HEROES Act”) authorizing the Secretary of Education to “waive or modify” the provisions of several federal student loan programs in order to protect recipients from the financial consequences of a “national emergency.”⁵⁵ The Department of Education argued that the COVID-19 pandemic—undoubtedly a national emergency—justified the invocation of its HEROES Act authority. Invoking the major questions doctrine, the Court held that “[h]owever broad the meaning of ‘waive or modify,’ that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here.”⁵⁶

Thwarted in its effort to use the Department of Education’s “waive or modify” authority under the HEROES Act, the Biden administration vowed to find other statutory means of relieving student debt.⁵⁷ Just eleven months after the Supreme Court’s ruling, the administration announced that without relying on the HEROES Act, it had successfully canceled $167 billion in student debt for 4.75 million borrowers through a series of smaller rules under different statutory authorities.⁵⁸ Furthermore, the administration averred, there were still additional loan forgiveness measures to come. “President Biden will not stop fighting to cancel more student debt for as many Americans as possible,” the White House declared.⁵⁹ (Some of those measures were subsequently blocked by the Eighth Circuit.)⁶⁰

The Biden administration’s response to the Court’s Clean Power Plan decision offers a somewhat less overt example of major questions avoidance. Promulgated under President Obama and then rescinded during President Trump’s first term, the Clean Power Plan leveraged the EPA’s authority under section 111 of the Clean Air Act to set emissions standards at the level achievable through the “best system of emission reduction” that has been satisfactorily demonstrated.⁶¹ The EPA interpreted that language to authorize it to prescribe “generation shifting”: the nation’s electricity grids would be required to replace high-emitting coal plants with increased electricity generation from natural gas plants and renewable sources such as wind and solar.⁶² The “best system,” in other words, involved taking coal plants out of commission and substituting cleaner energy. The Court in West Virginia v. EPA rejected that reading of the statute: “As a matter of ‘definitional possibilities,’ generation shifting can be described as a ‘system,’ ” Chief Justice Roberts wrote for the Court, but “a vague statutory grant is not close to the sort of clear authorization required by our precedents” for a rule as “major” as the EPA’s.⁶³

In the wake of the West Virginia decision, the Biden administration—which had never actually tried to reinstate the Obama administration’s Clean Power Plan—pursued a series of coal-related rulemakings that did not rely on its predecessor’s contentious reading of section 111 as allowing “generation shifting.” These efforts culminated in April 2024 when the EPA Administrator announced a “suite of final rules” to reduce coal power plant emissions.⁶⁴ One of these rules, mentioned above in the context of slicing,⁶⁵ requires existing coal power plants to install carbon capture and storage systems—a more traditional interpretation of the “best system” language in section 111 than the Clean Power Plan.⁶⁶ A second rule, promulgated under section 112 of the Clean Air Act rather than section 111, sets new limits on emissions of mercury and other air toxics from coal facilities.⁶⁷ A third rule relies on the EPA’s authority under an entirely different statute—the Clean Water Act—to impose more stringent restrictions on water discharges from coal plants.⁶⁸ “Taken together,” observed a New York Times news analysis, “the regulations could deliver a death blow in the United States to coal.”⁶⁹ Put another way, the suite of regulations seeks to accomplish the same ultimate goal that the Clean Power Plan pursued: to force a shift away from coal and toward cleaner energy sources across the U.S. electric grid.⁷⁰

One factor that distinguishes the coal case from the student loan case is that in the student loan case, we know that the Department of Education adopted its lumping strategy in response to the major questions doctrine. We know that because the Department of Education tried to implement its student debt cancellation plan pursuant to the HEROES Act and then shifted to other statutory authorities only after the Supreme Court blocked the HEROES Act effort on major questions grounds. In the coal case, by contrast, we do not know whether, in the absence of the West Virginia decision, the Biden administration EPA would have updated its predecessor’s Clean Power Plan—adopting the same reading of section 111 as authorizing generation shifting—or whether in the first instance the Biden EPA would have promulgated a potpourri of rules under both the Clean Air Act and the Clean Water Act. What we can say is that when the major questions doctrine foreclosed one possible regulatory approach to coal, the Biden administration chose another.

As examples of lumping, the series of student debt cancellations and coal-focused EPA rules are arguably more alike than different. What makes them alike—and different from many other potential cases of lumping—is that they came after, not in anticipation of, a court ruling that blocked an alternate regulatory route on major questions grounds. In other cases, major questions avoidance via lumping may occur more subtly. One or more agencies may issue a series of rules in service of a common goal without first trying and failing to achieve the same objective through a larger rule pursuant to a single statutory authority. We might never know whether this series of rules reflects major questions avoidance because we cannot observe the counterfactual world without the major questions doctrine hanging overhead. Even the administration officials involved in the decision to pursue the series of rules might not be able to say definitively that the strategy reflects major questions avoidance: fear of the major questions doctrine may have been one among several factors favoring the more incremental approach, and no single policymaker may know for sure whether the major questions doctrine was outcome-determinative.

This last point regarding the difficulty of detecting lumping will become particularly significant to the analysis in Part IV, when we consider whether the courts can combat avoidance through a doctrine of major questions anti-avoidance. If major questions avoidance is difficult to detect, it also may be difficult to deter. Thus, while lumping may be a less obvious example of avoidance than slicing, the non-obviousness of lumping may turn out to be exactly what makes it such an effective avoidance strategy.

“Glossing”

Whereas slicing and lumping entail changes to the scope and substance of agency regulations, “glossing” affects rules only on the surface. Glossing occurs when agency officials or others within the administration describe a rule in terms tailored to downplay its majorness. Even before the Court’s quartet of major questions decisions starting in 2021, Blake Emerson observed that the major questions doctrine alters agencies’ rhetorical incentives. “Because the doctrine generally forbids agencies from making decisions of great economic and political significance,” Emerson wrote, “it encourages agencies to explain themselves in technocratic terms, even if significant questions of value are at issue.” Emerson added: “If agencies know that courts will decline to defer to them if they detect agency consideration of important questions of political value, they will invariably explain their interpretations of statutory ambiguities in a way that makes them appear purely technical.”⁷¹ They will, to use this Article’s terminology, “gloss.”

Although glossing is a potential response to the major questions doctrine, it may not be—as Emerson suggests—an “invariabl[e]” response. Jody Freeman and Matthew Stephenson agree with Emerson that “executive branch lawyers might well start advising agencies to make their rules seem smaller in scope, more incremental, and more technocratic, and suggesting that the President, agency ofﬁcials, and other supporters avoid talking about how these rules contribute to some larger policy agenda or help address some big national problem.”⁷² But Freeman and Stephenson add that “this advice goes against the grain, since most political appointees are eager to tout their regulatory accomplishments, and presidents want to demonstrate strong leadership by publicizing and claiming credit for what their agencies are doing.”⁷³ Whether the litigation-driven incentive to gloss will outweigh the political incentive to trumpet the majorness of a regulatory initiative may depend on—among other factors—the distance to the next election, the relative influence of an agency’s general counsel vis-à-vis other officials, and the career ambitions of the agency head who promulgates the relevant rule.

So far, we have seen some examples of glossing and some examples of administration officials issuing statements that defy the rhetorical incentives generated by the major questions doctrine. As a possible example of glossing, then-CDC Director Rochelle Walensky said on National Public Radio in August 2021—when announcing an additional two-month extension of the agency’s eviction moratorium—that the “new, tailored order” was focused specifically on “areas of highest transmission” that faced the “most public health challenges.”⁷⁴ In fact, the August 2021 moratorium—though slightly narrower in geographic scope than the previous nationwide eviction prohibition—still covered ninety percent of the U.S. population.⁷⁵ President Biden’s unbridled celebration of his administration’s student debt forgiveness efforts offers a contrary example of “anti-glossing”: an administration official—here, the highest-ranking administration official—explicitly emphasizing that an agency initiative represents an end–run around the major questions doctrine. “[T]he Supreme Court blocked us,” President Biden told an audience at a college in Wisconsin in May 2024, but “that didn’t stop us. . . . We continue to find alternative paths to reduce student debt payments . . . that are not challengeable.”⁷⁶ Republican Attorneys General from seven states did, indeed, seek to block those “alternative paths,” alleging that the Biden administration’s approach still violated the major questions doctrine.⁷⁷ And as noted, that challenge succeeded in delaying some—though not all—of the Biden administration’s student debt relief measures.⁷⁸

“Bypassing”

A fourth form of major questions anti-avoidance is “bypassing,” whereby an agency sidesteps the rulemaking process altogether by pursuing its objectives through guidance documents, administrative adjudications, or enforcement actions. I borrow the “bypass” label from Jennifer Nou, who applies it in a different context to refer to similar tactics—including guidance, adjudication, and enforcement—that agencies use to insulate themselves from review by the Office of Information and Regulatory Affairs within the White House Office of Management and Budget.⁷⁹ Here, the impetus to use guidance documents, adjudications, and enforcement actions is not to escape White House review but to reduce the probability that judicial review will result in invalidation under the major questions doctrine.

A possible example of bypassing is the Department of Health and Human Services’ response to the Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, which overturned fifty years of precedent and withdrew constitutional protections for induced abortion.⁸⁰ Following that ruling, the Department of Health and Human Services issued a guidance document stating that the federal Emergency Medical Treatment and Labor Act (“EMTALA”), which applies to virtually all hospitals in the United States, requires physicians at covered hospitals to perform abortions in cases where abortion is necessary to resolve an emergency medical condition.⁸¹ The guidance added that “[w]hen a state law prohibits abortion and does not include an exception for the life of the pregnant person—or draws the exception more narrowly than EMTALA’s emergency medical condition definition—that state law is preempted.”⁸² Unlike other interpretations of EMTALA that have taken the form of regulations,⁸³ the Department declined to initiate a rulemaking process with respect to its abortion interpretation.

Undeterred by the fact that the Department’s interpretation came in the form of a guidance document rather than a rule, the Texas Attorney General—along with two groups of pro-life physicians—challenged the interpretation in federal district court, arguing among other points that the Department’s guidance ran headlong into the major questions doctrine because it resolved an “issue of vast policy and political significance” without clear authorization from Congress.⁸⁴ The Department responded that unlike the rules struck down by courts in earlier major questions cases, the EMTALA guidance was “not final agency action subject to judicial review” because it merely interpreted the statute and did not determine the rights or obligations of any party.⁸⁵ Both the federal district court and the Fifth Circuit rejected the Department’s finality argument, concluding that the guidance document reflected a new policy with concrete legal consequences that had all the indicia of final agency action.⁸⁶ In compliance with the district court injunction, the Department is not enforcing its EMTALA guidance in the state of Texas or against members of the two pro-life physicians’ groups while it seeks Supreme Court review, though it is continuing to enforce the guidance throughout the rest of the country.⁸⁷

Time will tell whether bypass via guidance document can succeed in other circumstances. As Ronald Levin observes, case law regarding the rule/guidance distinction is in a state of “general disarray.”⁸⁸ We will return in Section II.C to the questions of when and whether bypass via guidance may be a viable legal strategy. Importantly, though, guidance is not the only means of effectuating bypass: agencies also can seek to skirt the major questions doctrine by pursuing their policy goals through enforcement actions.⁸⁹

One arguable example of bypass via enforcement is the Securities and Exchange Commission’s ongoing effort to police the cryptocurrency industry. The Commission has argued in a series of enforcement actions that certain cryptocurrency offerings are “securities” subject to the registration requirements of the Securities Act of 1933. Some commentators have argued that the Commission’s assertion of jurisdiction over the cryptocurrency industry violates the major questions doctrine because “the cryptocurrency market has vast economic and political significance” and the Commission “has not clearly been empowered by Congress to regulate that market.”⁹⁰ The cryptocurrency exchange Coinbase road-tested this argument in federal district court in the Southern District of New York, where Judge Katherine Polk Failla swatted it away. “Simply put, the cryptocurrency industry cannot compare with those other industries the Supreme Court has found to trigger the major questions doctrine,” Judge Failla wrote.⁹¹ Stymied in the Southern District of New York, cryptocurrency firms have recently filed suits in the Northern and Western Districts of Texas to challenge the Commission’s interpretation of the term “security.”⁹²

Whereas Judge Failla rejected Coinbase’s major questions argument on grounds specific to cryptocurrency and the structure of the securities laws, Todd Phillips and Beau Baumann have argued that the major questions doctrine should never apply to enforcement actions “when courts, not agencies, interpret statutes in the first instance.”⁹³ Phillips and Baumann acknowledge that a categorical exception from the major questions doctrine for agency enforcement actions in federal court would incentivize agencies to bypass the rulemaking process altogether—another instance of scholarship anticipating major questions avoidance, though the authors do not use that term.⁹⁴ Nonetheless, they argue, an enforcement action is “less major” than a legislative rule “because it does not sweep in an entire industry,”⁹⁵ and enforcement actions brought in federal court should lie outside the major questions doctrine’s “domain.”⁹⁶

If courts take up Phillips and Baumann’s suggestion, then bypass via enforcement is likely to become a frequent means of major questions avoidance, at least for agencies such as the Securities and Exchange Commission with authority to bring judicial enforcement actions on their own.⁹⁷ Even if courts do not carve out a categorical exception for enforcement actions, bypass via enforcement may become attractive to agencies seeking to reduce—though not eliminate—the risk of a major questions setback. But as we will see in the next part, the incentives for major questions avoidance—via bypass or via slicing, lumping, or glossing—sometimes can come into conflict with considerations of administrative efficiency, litigation strategy, and political advantage. Major questions avoidance will be an enticing option for agencies in some circumstances, but not in all.

II. The Benefits and Costs of Major Questions Avoidance

A. Benefits

On first glance, major questions avoidance may seem like it brings obvious benefits to an administration or agency seeking to advance a regulatory agenda, at least when a rule might otherwise run aground on the major question doctrine’s shoals. As a general matter, the stricter standard of scrutiny associated with the major questions doctrine—whether in the form of the elephants-in-the-mouseholes canon or the denial of Chevron deference or West Virginia v. EPA’s clear statement requirement—reduces a rule’s survival probability. As a result, major questions avoidance will typically bring a benefit—a lower chance of judicial reversal—that agency and administration officials must weigh against the costs of avoidance.

But before leaving the benefits side of the ledger, it is important to acknowledge that agency and administration officials may not always see major questions avoidance as a benefit. First, sometimes an agency may promulgate a rule not because officials at the agency or the White House think the rule is a good idea but because they are responding to political pressure from outside groups. For example, when the CDC announced a two-month extension to its eviction moratorium in August 2021, the Washington Post described the action as “a move that bent to intense pressure from liberal House Democrats.”⁹⁸ According to the Post, President Biden did not want to extend the moratorium—evidently because he believed that it overstepped the constitutional bounds on executive power—but “House Democrats responded angrily” to the administration’s position.⁹⁹ One progressive Democrat, Representative Cori Bush of Missouri, staged what the New York Times described as “a round-the-clock sit-in on the steps of the United States Capitol that galvanized a full-on progressive revolt,” camping there for four days and nights “in rain, cold and brutal summer heat.”¹⁰⁰ From the perspective of Biden administration officials, issuing the moratorium and then having it be struck down by the Supreme Court may have been exactly the outcome that they needed to get progressives off their backs.

Second, even when administration and agency officials support the policy behind a rule, they still may see a political benefit in having the rule be struck down by the courts—and especially by the Supreme Court. For example, in the case of student debt forgiveness, President Biden arguably stood to gain electorally from his clash with the Court’s conservatives. In a March 2024 poll, seventy percent of young voters, seventy-two percent of Black voters, and sixty-eight percent of Hispanic voters said that student debt cancellation was an “important” issue to them in the upcoming election.¹⁰¹ White House officials might have anticipated that the student debt issue would give a boost to President Biden in his then-anticipated rematch with Donald Trump, whose three appointees to the Supreme Court supplied critical votes against the debt relief rule. (That electoral rematch—of course—never ultimately happened.)

Third and finally, a court decision invoking the major questions doctrine may be useful to an administration that seeks to entrench its policy position. For example, the Supreme Court’s major questions holding in King v. Burwell—in which the Court ruled that the availability of premium tax credits on federally established health insurance exchanges was a “question of deep ‘economic and political significance’ ” beyond the discretion of the Internal Revenue Service¹⁰²—prevented the Trump administration from denying credits to exchange participants after the end of the Obama presidency. Notably, the version of the major questions doctrine that was applied in King v. Burwell simply denied Chevron deference to the Internal Revenue Service’s interpretation of the Affordable Care Act; the agency still could—and indeed did—persuade the Court that its interpretation of the statute was correct as a matter of first principles.¹⁰³ Still, the King v. Burwell episode illustrates the more general point that when agencies are thinking about threats to their regulatory policies, they are thinking about threats not only from the judiciary but also from the next administration.¹⁰⁴ For policy entrenchment reasons—as well as for the above-mentioned reasons related to interest group pressure and electoral opportunity—a judicial determination of majorness may not always be a net-negative for the current occupants of the executive branch.

B. Costs

Notwithstanding the caveats in the previous Section, high-ranking officials at agencies and across the administration generally will not want the courts to classify their regulatory initiatives as implicating the major questions doctrine. Still, they must weigh the benefits of major questions avoidance against the considerable costs. This Section focuses on three

especially significant costs of major questions avoidance: administrative burdens, litigation risks, and political costs.

Administrative Burdens

Major questions avoidance—especially when it takes the form of slicing or lumping—is likely to increase the total burden on agency officials responsible for drafting and promulgating rules. As Jennifer Nou and Jed Stiglitz observe, agencies incur certain “fixed production costs” whenever they issue a new rule: they must establish a docket, write language that goes into every rule, complete internal paperwork, and—for non-independent agencies—secure sign-off from the Office of Information and Regulatory Affairs within the White House.¹⁰⁵ Nou and Stiglitz note that “[t]he presence of fixed production costs generally encourages regulatory bundling”—in other words, encourages agencies to cover more ground in a single rule rather than splitting one rule into several.¹⁰⁶ Slicing—along with the related phenomenon of lumping (in which agencies issue a series of rules under different statutory authorities)—both cut against the incentive to minimize regulatory production costs.

The extent to which regulatory production costs deter avoidance will vary across agencies and across time. First, some agencies are much more adept at issuing rules than others. For example, according to data from Regulations.gov, the EPA issued 384 rules in 2023, while the Equal Employment Opportunity Commission (“EEOC”) issued only three (one of which was a technical amendment to correct a typographical error in an earlier rule and one of which adjusted certain figures for inflation).¹⁰⁷ For an agency that churns out rules like they are cars coming off an assembly line, the costs of a few additional rulemakings may be manageable. For an agency like the EEOC that exercises its rulemaking muscles on rare occasions, the prospect of issuing several rules rather than a single rule may be more daunting.

Second, administrative burden of bypass via enforcement is likely to depend on whether an agency has independent litigation authority. Some agencies—such as the Securities and Exchange Commission and the Consumer Financial Protection Bureau—have authority to initiate litigation in federal court on their own.¹⁰⁸ Others—such as the Department of Health and Human Services—must rely on the Justice Department to bring enforcement actions in federal court.¹⁰⁹ As Kirti Datla and Ricky Revesz note, “the Environmental Protection Agency has independent litigation authority over only a few discrete violations of the Toxic Substances Control Act.”¹¹⁰ Otherwise, the EPA’s ability to enforce the environmental laws in federal court depends on the cooperation of Justice Department attorneys.

Even when Justice Department attorneys are ideologically aligned with an agency’s policy agenda, bypass via enforcement is likely to be more burdensome for agencies without independent litigation authority. Every substantive filing in a case will require coordination—and potentially negotiation—between agency officials and Justice Department counterparts. As a result, we might hypothesize that agencies with independent litigation authority will be more likely to pursue bypass via enforcement than agencies without. Returning to the EPA/EEOC comparison, the EPA may be more likely to pursue slicing or lumping as an avoidance tactic because it is quite adept at issuing rules but lacks independent litigation authority; the EEOC may be more likely to pursue bypass via enforcement because it lacks the EPA’s well-practiced rulemaking infrastructure, but possesses independent litigation authority at the district court and circuit court level.¹¹¹

Finally, the administrative burden of avoidance is likely to be more salient near the end of a presidential term. This is because administrative burden results not only in a costlier regulatory process but also a slower process. The need for speed is greatest in an administration’s final days: executive branch turnover on January 20 of every fourth or eighth year means that regulatory projects not completed before that date are likely to die if the next administration does not support the effort, leading to the familiar phenomenon of “midnight rulemaking.”¹¹² Even when the President hands the baton to a successor of the same party—something that has happened outside the context of resignation or death only once since World War II—rulemaking activity may accelerate at an administration’s end. According to one account, the Reagan administration rushed in its waning days to finalize regulations that were deemed “too hot to handle” during the 1988 presidential campaign, “hoping to minimize the divisive controversy George Bush might otherwise face” if those issues were resolved before the general election or after Bush’s inauguration.¹¹³ If time is of the essence—either because the next administration has different policy priorities or because the current administration wants to shield a politically aligned successor from blowback—then major questions avoidance via slicing, lumping, or bypassing will be less viable strategies.

Speed also matters at an earlier juncture in an administration’s final year because of the Congressional Review Act, which allows Congress to block a regulation from taking effect by enacting a joint resolution.¹¹⁴ If a rule is finalized within the last sixty Senate “session” days or sixty House “legislative” days before Congress adjourns, the next Congress will have an opportunity to block the rule—and, importantly, the joint resolution will be immune from a Senate filibuster.¹¹⁵ Because a House “legislative day” can span multiple calendar days—and because both the House and Senate may adjourn earlier or later than expected—the deadline for finalizing a rule in order to avoid fast-track review by the next Congress is variable. In an election year, it may fall anywhere from the spring to the late summer.¹¹⁶

Joint resolutions of disapproval under the Congressional Review Act are still subject to presidential veto, so absent a change in administration or an extremely unpopular rule that is opposed by a veto-proof supermajority of Congress, the Congressional Review Act does not pose a significant threat to agency action in most years. But in the last year of a presidential administration, agencies have strong incentives to finalize controversial rules early enough that the next Congress and the next President cannot use the Congressional Review Act to undo the agencies’ handiwork. Almost certainly for that reason, April 2024—which was thought to be the last month before Biden administration rules became subject to the fast-track disapproval procedure in the next Congress—was “the busiest month on record” for major regulations, with the Office of Information and Regulatory Affairs reviewing more than eight times as many economically significant final rules as in the typical month.¹¹⁷ One might describe this phenomenon as “8 p.m. rulemaking”—rather than “midnight rulemaking”—because it occurs roughly five-sixths of the way through a President’s term (just as 8 p.m. strikes five-sixths of the way through the day). As the 8 o’clock hour approaches, the efficiency drawbacks of slicing and lumping increase because delay raises the risk of reversal under the Congressional Review Act. In that timeframe, agencies must weigh the benefits of major questions avoidance against the benefits of Congressional Review Act avoidance.

Litigation Risks

So far, the analysis in this Part has proceeded under the guiding assumption that major questions avoidance raises the probability that a regulation will survive judicial review. That assumption is probably accurate most of the time—but not all of the time. In at least three scenarios, certain forms of major questions avoidance may increase an agency’s litigation risk.

First, when an agency slices a single rule into several smaller rules issued sequentially, it may expose itself to challenges asserting that the distinctions it has drawn (for example, among industries or among regions) are arbitrary and capricious. As the D.C. Circuit put it, “[t]he great principle that like cases must receive like treatment” is “black letter administrative law.”¹¹⁸ A regulatory scheme may fail in court both because it is “overinclusive” and “underinclusive.”¹¹⁹ The merits of any underinclusivity challenge to a sliced rule will depend on the details, but it would be an overgeneralization to say that smaller rules always fare better in court than larger ones.

Second, to the extent that an agency engages in avoidance via glossing, it may open itself to attack under the State Farm doctrine, according to which a rule may be set aside as arbitrary and capricious if the agency “entirely failed to consider an important aspect of the problem.”¹²⁰ As the D.C. Circuit has put it, administrative law’s “reasoned decision-making” standard “requir[es] the agency to focus on the values served by its decision.”¹²¹ Courts will—on occasion—strike down an agency rule because the agency explained itself in entirely technical or legalistic terms when its decision required a substantive value judgment.¹²² To be sure, courts typically grade agency explanations on a generous curve: an agency usually won’t have to say all that much to satisfy State Farm.¹²³ But an agency that engages in hyperaggressive glossing—denying or significantly downplaying the economic, political, or ethical stakes of its decision—may leave itself vulnerable on the State Farm flank even as it seeks to shield itself from the major questions doctrine.

Finally, when an agency pursues bypass via guidance document, it may reduce the risk that its pronouncement will be deemed a final agency action subject to judicial review but raise the risk that the guidance document will be deemed a “legislative rule” in disguise that ought to have gone through a notice-and-comment process. Many more regulatory initiatives have failed on notice-and-comment grounds than on major questions grounds: as Ronald Levin observes, “the question of whether a supposedly informal pronouncement of an administrative agency is actually a rule that should have been adopted through notice-and-comment procedure may well be the single most frequently litigated and important issue of rulemaking procedure before the federal courts today.”¹²⁴ Note that the notice-and-comment concern does not apply to avoidance via slicing and lumping provided that the sliced or lumped-together rules each go through notice and comment. But, returning to the regulatory-production-costs point above, the rigamarole of multiple notice-and-comment procedures—necessary to insulate sliced and lumped-together rules against litigation risk—further raises the administrative burden of avoidance.

Political Costs

Along with its administrative burdens and litigation risks, major questions avoidance potentially comes with significant political drawbacks. Presidents want credit from voters for their regulatory achievements. Agency heads with ambitions for higher office want the world to notice their accomplishments. These outcomes are more likely when agency actions generate media attention, and the media is much more likely to cover rules that are larger in scope. Thus, even when the major questions doctrine discourages agencies from issuing broad rules, political incentives may push in the opposite direction.

The political costs of major questions avoidance will vary across time, across agency, and across subject matter. Electoral incentives are likely to be most salient in the last year of an administration—roughly around the same time that the costs of regulatory delay reach their peak. Meanwhile, career incentives do not affect all agency heads equally. Although it is often said that “every senator looks in the mirror and sees a future president,”¹²⁵ the CDC Director may look in the mirror and see no one other than the CDC Director. For some agency heads without further political ambitions, staying out of the spotlight may be an added benefit of major questions avoidance. Moreover, in some cases, an administration may—for electoral reasons—want to minimize attention to a controversial rule. For example, Biden administration officials may have been happy to regulate coal through a series of smaller rules because coal regulation—though popular among environmentalists—carries electoral risks in the swing state of Pennsylvania, the third largest coal-producing state in the country.¹²⁶ In those instances, major questions avoidance and electoral politics may work hand in hand.

Finally, agencies and administration officials may be able to capture both the benefits of major questions avoidance and the political benefits of larger regulatory initiatives by emphasizing the combined effect of several smaller rules. President Biden’s “anti-glossing” approach to student debt forgiveness is arguably a case in point: by touting the combined effect of several different student loan relief initiatives, President Biden successfully vaulted his series of smaller debt cancellations onto the front page of the New York Times and into the national spotlight.¹²⁷ Still, a drawback of major questions avoidance is that even when the combined effects of multiple rules, guidance documents, administrative adjudications, or enforcement actions are far-reaching, the consequences will typically be more difficult to explain to the average voter than a single sweeping rule. Thus, the political cost of major questions avoidance may be not only that avoidance leads to less attention but also that it engenders lower comprehension.

Ultimately, whether the political costs of major questions avoidance outweigh the benefits depends on a question much larger than the major questions doctrine itself: what motivates regulators? Perhaps counterintuitively, major questions avoidance may be more likely if the “public interest” theory of regulation applies: if regulators are “benevolent . . . , trustworthy, disinterested, and public-spirited experts who produce rules that ensure general economic efficiency and maximum welfare for society.”¹²⁸ If agency and administration officials respond more strongly to personal or partisan motives, then the political costs of major questions avoidance may outweigh the benefits from those officials’ self-interested perspective. To be sure, this conclusion comes with caveats. Regulators motivated by private interests may embrace avoidance if—for example—they are responsive to inducements from sophisticated interest groups that will appreciate the combined effects of several sliced or lumped rules. And public-interested regulators may eschew avoidance if they conclude—perhaps after weighing the considerations laid out in the next part—that major questions avoidance has a corrosive effect on the legitimacy of the administrative state.

III. Major Questions Avoidance and the Legitimacy of the Administrative State

So far our analysis has been primarily positive and predictive: how—and how often—will agencies modify their regulatory strategies to avoid the major questions doctrine? This Part shifts into a normative gear, asking what the phenomenon of major questions avoidance means for the legitimacy of the modern administrative state. Following Richard Fallon’s tripartite classification of legitimacy claims into sociological, legal, and moral categories, I use the term “legitimacy” here in the moral sense: “legitimacy inheres in the moral justification, if any, for claims of authority asserted in the name of the law.”¹²⁹ As we shall see, different theories of administrative state legitimacy lead to different implications for major questions avoidance. This Part focuses on four prominent theories, which vary based on the source to which they ascribe the administrative state’s legitimacy: (1) presidential legitimacy, (2) legislative legitimacy, (3) expert legitimacy, and (4) participatory legitimacy.

A. Presidential Legitimacy

Probably the most prominent normative theory of the administrative state in American legal thought today locates the source of agency legitimacy in the presidency.¹³⁰ The leading exponent of the presidential legitimacy theory in the legal academy—before she became Solicitor General and then Associate Justice of the Supreme Court—was Professor and Dean Elena Kagan.¹³¹ As then-Professor Kagan observed in an enormously influential 2001 Harvard Law Review article, “Presidents . . . are the only governmental officials elected by a national constituency in votes focused on general, rather than local, policy issues.”¹³² Paraphrasing the earlier work of administrative law scholar Jerry Mashaw, Kagan wrote that bureaucratic action thus “turns out to have a democratic pedigree purer even than Congress’s in our system of government.”¹³³

Kagan’s arguments regarding the democratic bona fides of presidential administration are both backward-looking and forward-looking. From a backward-looking perspective, “a President has won a national election,” and “this election, exactly because it was national in scope, probably focused on broad policy questions, conveying at least some information to the public about the future President’s attitude toward regulation.”¹³⁴ But in Kagan’s view, the “more important point is prospective.” As she puts it:

[B]ecause the President has a national constituency, he is likely to consider, in setting the direction of administrative policy on an ongoing basis, the preferences of the general public, rather than merely parochial interests. . . . In his first term, the desire for reelection alone provides a reason to do so, including through the adoption of policies favored by a majority of the voting public. And even in his second term, a President retains strong incentives to consider carefully the public’s views as to all manner of issues—incentives here related to his ambition for achievement, and beyond that for a chosen successor or historical legacy.¹³⁵

This theory of “presidential legitimacy”—whereby the exercise of executive power derives its democratic justification from the relationship between the President and “the People”—also bears implications for the relationship between the President and the agencies. According to Kagan’s theory of presidential legitimacy, “enhanced presidential control of administration serves democratic norms.”¹³⁶ This conclusion counsels for a more robust presidential role in regulatory decision-making.¹³⁷ It also favors a forthright acknowledgement that agency decisions emanate from the President. In Kagan’s words, “[t]o the extent that presidential supervision of agencies remains hidden from public scrutiny, the President will have greater freedom to play to parochial interests.”¹³⁸ By contrast, “[i]t is when presidential control of administrative action is most visible that it most will reflect presidential reliance on and responsiveness to broad public sentiment.”¹³⁹

From a presidential legitimacy perspective, the major questions doctrine seems 180-degrees backwards. Agency decisions of vast economic and political significance are the most likely to involve—and to be perceived by the public as emanating from—the President. Yet as Jodi Short and Jed Shugerman observe, the Court’s decisions in its major questions cases all focus on the role of “unaccountable bureaucrats”—a phenomenon that the authors describe as “presidential erasure.”¹⁴⁰ As Short and Shugerman write, the President “actively supported” and “took public responsibility for” each of the policies at issue in the Court’s major questions cases, and each of these policies provoked “vigorous” national debates.¹⁴¹ Nonetheless, “despite the special national democratic character of presidential involvement in policies that have been struck down in MQD cases, the President is virtually invisible in these opinions.”¹⁴²

Indeed, from a presidential legitimacy perspective, it is arguably “minor questions,” not major ones, that ought to trigger the most stringent judicial scrutiny.¹⁴³ Regulations that address minor questions are the least likely to reach the President’s desk, least likely to generate media coverage, and least likely to swing votes in a general election. Those rules are probably the most likely to advance the private objectives of special interest groups rather than the greater good of the public at large. Yet under current doctrine, regulations that address minor questions escape the searching judicial review that applies to high-profile rules that already have been approved by the President and are likely to be vetted by voters.

Given that the major questions doctrine makes little sense from a presidential legitimacy perspective, one might think that adherents to the presidential legitimacy theory would embrace major questions avoidance. As Daniel Farber, Jonathan Gould, and Matthew Stephenson argue, “if a legal rule produces undesirable effects, a workaround will generally be a welcome corrective.”¹⁴⁴ Major questions avoidance offers a possible exception to this general rule. Sliced rules under the same statutory authority, smaller rules under different statutory authorities, guidance documents, administrative adjudications, and enforcement actions all come with the democratic disadvantages of “minor questions”: they are less likely to reach the presidential level and less likely to garner media and voter attention. As Freeman and Stephenson write, “[i]f agencies downplay the real reasons for their rules, segment actions to make them seem more innocuous, or try to portray significant policy changes as technocratic, it becomes more difficult for the public to know what the executive branch is doing (and why), and therefore harder to hold the President to account for it.”¹⁴⁵ Thus, while the major questions doctrine is undesirable from a presidential legitimacy perspective, major questions avoidance is also undesirable from a presidential legitimacy perspective. Indeed, major questions avoidance may be particularly pernicious because—in Freeman and Stephenson’s telling—it redounds to the advantage of “[s]ophisticated, well-organized interest groups,” who are “more likely than ordinary citizens to understand how a collection of seemingly technocratic, incremental regulations contribute to some larger policy agenda.”¹⁴⁶ For presidential legitimacy theorists who value presidential administration precisely because it makes agencies accountable to a national electorate, major questions avoidance may be a cure even worse than the disease.

B. Legislative Legitimacy

Whereas the presidential legitimacy account locates the justification for administrative power in the executive (in other words, Article II), the legislative legitimacy account shifts focus to Article I: Congress. Members of the House and—for the last century¹⁴⁷—the Senate are the only national officials who are elected directly by the people. Ordinary citizens face a much higher chance of having their concerns heard by their Congressmember or home-state Senators than by the President. And, of course, the Constitution assigns all lawmaking powers to Congress¹⁴⁸—a fact that matters more to formalists than to functionalists but still may matter to functionalists who see some value in achieving “fit” between the constitutional framework and the practical reality of the modern administrative state.

The major questions doctrine fares better from a legislative legitimacy perspective than from a presidential legitimacy perspective. Given the scope and complexity of a modern state, it would be impossible for the legislature to weigh in on every policy choice, but policy choices of vast economic and political significance should be made by officials who are accountable to voters through direct elections—or so the argument goes. Risk-averse lawmakers who are concerned about their own reelection may be tempted to pass the buck for controversial decisions to administrative agencies,¹⁴⁹ but the major questions doctrine prevents legislators from sloughing off responsibility for those choices. Seen in this light, the major questions doctrine reflects the not-altogether-unreasonable proposition that Congressmembers must not be allowed to escape responsibility for important and controversial questions of climate change, public health, student debt, and so on—or if Congressmembers do pass the buck, they should have to fess up to it.

But while the legislative legitimacy theory leads to greater sympathy toward the major questions doctrine, it also—like the presidential legitimacy theory—engenders antipathy toward major questions avoidance. Sliced rules, lumped-together rules, guidance documents, administrative adjudications, and enforcement actions are not only more likely to escape presidential attention but also more likely to evade legislative oversight. Congressional committee hearings are an important mechanism through which the legislature regulates the administrative state: when members of the House and Senate have questions about an agency’s policies or performance, they can summon agency officials to appear before committees and—if dissatisfied with the officials’ responses—can restrict or condition funding, hold up appointments, or potentially amend the relevant statutes.¹⁵⁰ But these accountability mechanisms are less likely to operate when incremental regulatory actions fly below Congress’s radar.

From a legislative legitimacy perspective, then, the relationship between the major questions doctrine and major questions avoidance conforms to the general relationship between first-order rules and workarounds identified by Farber et al.: when the first-order rule (here, the major questions doctrine) “tends to produce desirable effects,” then “a workaround will generally be undesirable.”¹⁵¹ In this case, though, the undesirability of the workaround also calls into question the wisdom of the first-order rule. Insofar as the major questions doctrine results in agencies effectuating their policies through incremental regulations, guidance documents, administrative adjudications, and enforcement actions that escape legislative oversight, the upshot may be that the House and Senate will exert even less influence over the questions of vast economic and political significance that—according to legislative legitimacy theorists—ought to remain within the province of Congress. Thus, for legislative legitimacy theorists who are sympathetic to the major questions doctrine ab initio, the possibility of major questions avoidance should lead to reconsideration—and perhaps revision—of that initial view.

C. Expert Legitimacy

A third normative theory of the administrative state—which emerges most clearly in the academic writing of former Supreme Court Justice Stephen Breyer¹⁵²—focuses on the role of expertise as a legitimating force. In Breyer’s view, neither the public nor Congress is well-suited to understand and respond to health and safety risks.¹⁵³ For Breyer, the only hope for effective risk regulation lies with an expert bureaucracy. As he put it in Breaking the Vicious Circle, his last book on administrative law before joining the Supreme Court:

A bureaucracy’s rationalizing tendencies match the need for consistency through system-building and prioritizing; a bureaucracy’s use of expertise matches the need for technically related regulatory improvement; a bureaucracy’s insulation matches the need for protection from the vicissitudes of public opinion based on a single substance or on a single issue; and a successful bureaucracy can begin to build public confidence in its systems, thereby making its results more authoritative.¹⁵⁴

According to this view, the justification for the administrative state’s claim to authority rests not only in the technical qualifications of individual bureaucrats but also in the institutional structure through which bureaucratic expertise is developed and deployed.

Some version of the major questions doctrine might be justifiable under an expert legitimacy account. Indeed, the doctrine’s name traces back to a line in a 1986 law review article by then-First Circuit Judge Breyer: “Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute’s daily administration.”¹⁵⁵ Judge Breyer made this point in the context of Chevron and congressional intent: a statutory ambiguity is less likely to reflect an implicit delegation to an agency when the relevant issue is major.¹⁵⁶ But the major questions doctrine arguably also fits within Breyer’s larger theory of expert legitimacy. If an issue is non-technical—if it implicates substantive value judgments with respect to which expert agencies enjoy no particular advantage—then the case for shifting authority from Congress to the bureaucracy is relatively weak. The major questions doctrine potentially serves to sort between the issues on which Congress can be trusted to channel public values and the issues that require depoliticized bureaucratic management.

An expert legitimacy version of the major questions doctrine might differ from the version adopted by the current Court. Rather than emphasizing the economic or political significance of an issue, the expert legitimacy version might focus on whether the relevant regulation implicates the agency’s experience and expertise. Framed this way, some of the Court’s major questions decisions might be better understood as what Jody Freeman has called “wrong agency” cases: cases in which the Court denies deference to an agency because the regulation at issue lies within a different agency’s bailiwick.¹⁵⁷ Moreover, adherents to the expert legitimacy account might conclude that some of the Court’s major questions cases were wrongly decided on the facts.¹⁵⁸ But the major questions doctrine is not as anathema

from an expert legitimacy perspective as it might be from a presidential legitimacy perspective.

What about major questions avoidance? The possibility that agencies might split their rules into smaller pieces that fly below the radar of the President and Congress is less disturbing from an expert legitimacy perspective than from a presidential or legislative legitimacy perspective. As Jody Freeman and Adrian Vermeule observe, the Court’s decision in Massachusetts v. EPA,¹⁵⁹ arguably the jurisprudential apogee of expert legitimacy theory, is motivated by a concern about White House meddling in agency scientific judgments.¹⁶⁰ For expert legitimacy theorists, keeping certain regulatory issues off the President’s desk is a desirable feature, not a bug, of major questions avoidance. So, too, with respect to Congress: “Congress is highly responsive to public opinion, as it ought to be,” Breyer wrote in Breaking the Vicious Circle.¹⁶¹ “This means, however, that if the public finds it difficult to order risk priorities, Congress is also likely to find it difficult.”¹⁶² At least for risk regulation decisions such as the choices related to cigarettes, climate change, and COVID-19 transmission at issue in some of the Court’s major questions cases, major questions avoidance—insofar as it also leads to avoidance of presidential and congressional oversight—is not an entirely unwelcome outcome.

From an expert legitimacy perspective, major questions avoidance may bring ancillary benefits beyond simply keeping certain issues away from the President and Congress. When an agency slices a broad rule R into a series of smaller rules R_a, R_b, R_c, and so on for industries A, B, C, and so forth, the agency may be more likely to leverage industry-specific expertise—from its own ranks or from the ranks of other agencies—in crafting each of the smaller rules. Drafting a regulation for a single industry focuses the bureaucratic apparatus on the particular characteristics of that industry—characteristics that might be ignored in an omnibus rulemaking. Moreover, if the agency proceeds sequentially—for example, promulgating rule R_a for industry A before it applies rule R_b to industry B—then the agency may gain on-the-ground knowledge from its experience with industry A that allows it to design a better rule for industry B. And by the time the agency reaches industry Z, cumulative knowledge from earlier efforts may allow the agency to craft a significantly superior regulatory regime.

This conclusion comes with qualifications. First, the types of rules to which an expert legitimacy theorist may wish to apply the major questions doctrine—nontechnical rules of vast economic and political significance—are not the same rules that they may wish to see sliced into a series of sub-rules. From an expert legitimacy perspective, major questions avoidance is most beneficial with respect to technical regulations that are likely to escape the major questions doctrine in the first place. And second, the benefits of slicing from an expert legitimacy perspective do not necessarily carry over to other forms of avoidance. For example, expert legitimacy theorists might not welcome bypass via enforcement if enforcement shifts influence toward generalist litigators in the agency’s enforcement division or at the Justice Department. In those instances, major questions avoidance—rather than empowering subject-matter experts within an agency—may relegate them to the regulatory sidelines.

D. Participatory Legitimacy

A fourth normative theory of the administrative state locates the legitimacy of agency authority in public participation. This theory of participatory legitimacy draws inspiration from the work of John Dewey, a prominent figure in early twentieth century pragmatist and progressive thought. In Dewey’s words:

No government by experts in which the masses do not have the chance to inform the experts as to their needs can be anything but an oligarchy managed in the interests of the few. And the enlightenment must proceed in ways which force the administrative specialists to take account of the needs.¹⁶³

Blake Emerson, the leading exponent of participatory legitimacy theory in the American legal academy today, has identified elements of Dewey’s vision across the modern administrative state. According to Emerson, the notice-and-comment process “institutionalizes the Progressive concern for public participation in agency policymaking.”¹⁶⁴ As Emerson continues, “Courts then police this process to ensure that agencies draw reasonable conclusions from the comments they receive, address all significant comments, and ensure that all major policy choices are sufficiently ventilated.”¹⁶⁵ The result is democratic legitimation of a different sort from what is contemplated by Kagan’s presidentialist account—a form of democratic legitimation that depends less on votes than on voice.

For Emerson, both the major questions doctrine and major questions avoidance are normatively problematic. “The problem with the [major questions] doctrine,” Emerson writes, is “that it discounts and short-circuits rational public deliberation between administrative officials and the public at large.”¹⁶⁶ The problem with major questions avoidance is even more acute. In particular, Emerson anticipates that the doctrine will lead agencies to gloss—to explain their decisions on questions of vast economic and political significance in highly technical terms. “This retreat into technocracy will further imperil democratic transparency,” according to Emerson, “because important value choices will be kept from public view, and dressed up in the supposedly neutral language of expertise.”¹⁶⁷

Participatory legitimacy theory—though it takes a dim view of glossing—may reach different normative conclusions regarding other avoidance strategies. Arguably, participatory legitimacy theorists should welcome slicing. From a participatory legitimacy perspective, smaller rules may be preferable to larger rules. While individuals have the formal opportunity to participate in the notice-and-comment process for all rules regardless of scope, any single individual’s voice is more likely to be heard in a smaller rulemaking than a larger rulemaking, since in the latter case, hundreds of thousands of other individual and organizational commenters are likely to drown out a lone voice. This participatory legitimacy argument for smaller rules runs parallel to the classic argument in the federalism literature for smaller jurisdictions: that “thicker forms of participation” such as contacting officials and attending civic meetings increase as jurisdictional size decreases.¹⁶⁸ On this account, the problem with major rules—like the problem with national governments—is that their scope is too broad, whether in subject-matter or geographic terms, to facilitate efficacious individual participation in their design.

Not all participatory legitimacy theorists are likely to be convinced by this argument, and this argument does not apply to all other forms of major questions avoidance. A possible participatory benefit of larger rules is that they are more likely to generate media coverage and debate, facilitating the “value-oriented process of public engagement” that, per Emerson, is key to participatory legitimation.¹⁶⁹ The benefit of greater opportunities for individual voice in the small-rule context must be weighed against the benefit of greater public attention for larger rules. Moreover, the tentative argument for slicing on participatory legitimacy grounds does not apply to bypass: guidance documents—if they do not go through notice-and-comment—as well as administrative adjudications and enforcement actions deprive the public of the participatory opportunities that notice-and-comment rulemaking allows. So, participatory legitimacy theory’s verdict on both the major questions doctrine and major questions avoidance appears to be mixed: a doctrine that incentivizes agencies to slice their larger rules into smaller pieces may yield some participatory benefits, but other responses to the major questions doctrine generate participatory costs. The justification for the first-order rule may thus depend on which workaround predominates.

***

Summing up so far: We have sought in this Part to answer a relatively narrow normative question: is major questions avoidance desirable? Attempting to answer that narrow question requires a broader normative theory of administrative state legitimacy. Different normative theories of administrative state legitimacy bear very different implications both for the major questions doctrine and for major questions avoidance. Moreover, thinking through the phenomenon of major questions avoidance from multiple normative perspectives yields fresh insights regarding the relationship between first-order rules and workarounds in public law.

The next (and final) Part shifts focus from the administrative state to the judicial branch: how should courts respond to major questions avoidance? For presidential legitimacy theorists, the answer is easy: the major questions doctrine should be eliminated, in which case we would not need to worry about major questions avoidance. Meanwhile, expert legitimacy theorists and participatory legitimacy theorists may not necessarily see major questions avoidance as a problem to be solved—at least when avoidance takes the form of slicing (and in a similar vein, lumping). But for legislative legitimacy theorists, major questions avoidance poses a genuine dilemma: avoidance has the potential to undermine the benefits that legislative legitimacy theorists ascribe to the major questions doctrine. Indeed, the major questions doctrine—to the extent that it incentivizes avoidance—may be counterproductive to legislative legitimacy theory’s larger goals. Yet, as we will see in the next part, crafting an effective judicial response to major questions avoidance will prove to be a Herculean—and perhaps Sisyphean—challenge.

IV. Major Questions Anti-Avoidance

Anti-avoidance rules abound in American law. For example, the Bank Secrecy Act’s anti-avoidance rule prohibits individuals from splitting larger cash transactions into smaller ones to evade the Act’s $10,000 reporting threshold—a practice colloquially known as “smurfing.”¹⁷⁰ Anti-avoidance rules in bankruptcy law such as the fraudulent conveyance and fraudulent transfer provisions prevent debtors from evading creditors’ efforts to enforce valid claims.¹⁷¹ Tax law—in particular—is replete with anti-avoidance rules, including the economic substance doctrine,¹⁷² the substance-over-form doctrine,¹⁷³ and the step transaction doctrine.¹⁷⁴

Courts typically apply anti-avoidance rules ex post—after all, the relevant avoidance actions have occurred. For example, under the step transaction doctrine, a court or the IRS will look retrospectively and wholistically at a series of completed steps and assess the federal tax consequences based “on a realistic view of the entire transaction.”¹⁷⁵ Theoretically, a major questions anti-avoidance rule could be applied ex post or ex ante. In the ex post version, the court would consider whether sequential regulatory actions, taken together, resolve a question of vast economic and political significance. In the ex ante version, the court would seek to intervene at the beginning of the sequence. As we shall see, both the ex ante and ex post versions lie within the bounds of imagination, but courts that seek to instantiate either strategy in the real world will encounter formidable challenges.

A. Ex Ante Anti-Avoidance

Ex ante anti-avoidance is easiest to conceptualize in the context of slicing. Imagine that an agency applies rule R_a to industry A and that the single-industry rule would not itself trigger the major questions doctrine. Now imagine that the same statutory theory that justifies the application of rule R_a to industry A also would authorize the application of R_b to industry B, R_c to industry C, and so on, all the way to industry Z, and that rules R_a through R_z would have a combined effect of vast economic or political significance. An ex ante version of major questions anti-avoidance would allow a regulated party in industry A to challenge rule R_a on major questions grounds, even though the sequence of rules might not cross the majorness threshold until much later down the line.

An ex ante version of major questions anti-avoidance would encounter serious difficulties in practice. First, the ex ante version would require courts to anticipate all—or at least many—of the possible regulations that follow logically from the statutory interpretation that justifies R_a. Only then could courts begin to evaluate whether these regulations, considered cumulatively, rise to the level of majorness. Many commentators have observed that this latter step—the determination of majorness—is itself an unmanageable inquiry.¹⁷⁶ As Ronald Levin writes, “criticisms of this sort should be taken with a grain of salt” because “[m]any administrative law doctrines implicate judgment calls,” but “[i]n this instance,” the manageability critique “is well founded.”¹⁷⁷ An ex ante major questions avoidance doctrine would be doubly difficult from a judicial manageability perspective—perhaps much more than doubly, because the first step (conjuring up regulations that do not yet exist) places a much heavier tax on the judicial imagination than determining whether an already-existing regulation implicates a major question. The difficulty is especially daunting when avoidance takes the form of lumping rather than splitting: judges will have to imagine not only the possible applications of a single statute but also possible similar uses of other statutes that the agency has not yet invoked.

To be sure, a court that is dead set on advancing a deregulatory agenda may be tempted to test out an ex ante anti-avoidance doctrine anyway. But judges—even deeply ideological judges—still usually assign some weight to other values, such as predictability and judicial economy. Even for judges with strong conservative or libertarian leanings, an unpredictable and unmanageable ex ante avoidance doctrine may prove to be a game not worth the candle.

Along with judges, regulated parties may shy away from an ex ante version of major questions anti-avoidance. Consider the dilemma facing a regulated party challenging the application of rule R_a to industry A. To prevail on an ex ante anti-avoidance theory, the challenger would have to make two showings: (1) that the same statutory interpretation that justifies the application of rule R_a to industry A also would justify the application of R_b to industry B, R_c to industry C, all the way through R_z for industry Z; and (2) that rules R_a through R_z rise to the level of majorness when assessed in the aggregate. If the challenger wins at the first step but not the second—if the court (1) agrees with the challenger that the agency’s authority to apply rule R_a to industry A also implies its power to promulgate similar rules for B through Z but (2) disagrees with the challenger’s claim that the resulting regulatory bundle would reach the majorness threshold—then the challenger will have blazed a path for much more extensive regulation in the future. And given how amorphous the majorness standard is,¹⁷⁸ litigants can rarely be confident at the outset of the first step that they will prevail if they reach step two.

Granted, a firm in industry A may not care about throwing its counterparts in industries B through Z under the bus. The calculus could change, though, if the firm is a multi-sector conglomerate with subsidiaries not only in industry A but also sprinkled across the rest of the alphabet. Likewise, a firm may be reluctant to press an ex ante avoidance argument if A, B, C, and so forth—instead of representing different industries—represent different products made by the same factory, different pollutants emitted by the same facility, or different trade practices of the same company. In those cases, winning a half-victory in an ex ante anti-avoidance case amounts to scoring on one’s own goal.

None of this is to say that litigants will never raise ex ante anti-avoidance arguments or that these arguments will never succeed. At least debatably, Utility Air Regulatory Group v. EPA presents a real-world example of ex ante anti-avoidance. In that case, the EPA argued that the Clean Air Act authorized it to regulate carbon dioxide and other greenhouse gas emissions from stationary sources that release 100,000 tons or more of carbon dioxide equivalent units each year.¹⁷⁹ The Supreme Court, in a majority opinion by Justice Scalia, observed that the same statutory theory would allow—indeed, would require—the EPA to regulate emissions from units that release just 100 to 250 tons of carbon dioxide equivalent units each year, which would sweep in “millions[] of small sources nationwide.”¹⁸⁰ The Court held that the more expansive rule would trigger the major questions doctrine even though the EPA had not yet (and probably never would) assert such far-reaching authority. “EPA’s interpretation . . . would bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization,” the Court stated.¹⁸¹ “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’ ”¹⁸²

Utility Air is an unusual case. There, the EPA explicitly acknowledged that its statutory interpretation would open the door to the regulation of millions more facilities.¹⁸³ In other words, the agency connected the dots from Rule R_a to R_z itself. Utility Air thus did not require litigants to make the highly risky move of arguing for a more expansive understanding of an agency’s authority, nor did it require courts to embark on an unguided imaginative journey into the land of regulatory hypotheticals. These unusual features of Utility Air help to account for the willingness of industry litigants and Justices to travel down the ex ante anti-avoidance path. In other cases, the difficulties of ex ante anti-avoidance from both a judicial-management and litigation-strategy perspective are likely to encourage a greater emphasis on the ex post alternative.¹⁸⁴

B. Ex Post Anti-Avoidance

Whereas ex ante anti-avoidance requires a court to anticipate what future regulations might follow from an agency’s interpretation of a statute, ex post anti-avoidance allows courts to adopt a wait-and-see approach. Consider again the example of an agency sequentially applying a series of rules (R_a, R_b, R_c, and so forth) to different industries. Ex post anti-avoidance would let a litigant challenge a later rule in the sequence (say, R_z) on the ground that rules R_a through R_z—in combination—trigger the major questions doctrine. Thus, ex post anti-avoidance averts two of the major difficulties facing ex ante anti-avoidance: (1) ex post anti-avoidance does not require litigants to argue for a more expansive understanding of agency authority, and (2) ex post anti-avoidance does not require courts to conjure up rules that do not yet exist.

For these reasons, major questions anti-avoidance—to the extent that it ever takes shape—is likelier to crystallize in ex post rather than ex ante form. Still, ex post anti-avoidance encounters difficulties of its own. The first is jurisdictional: even if a court concludes on a challenge to rule R_z that the combination of rules R_a through R_z trigger the major questions doctrine, regulated actors in industry A may not be party to the case involving Z. Moreover, the court’s anti-avoidance decision in the Z case may have uncertain implications for A, B, and C, as the agency may have additional area-specific rationales for its rules in those industries that require individualized adjudication. Thus, the class action mechanism may be a poor fit for ex post anti-avoidance cases,¹⁸⁵ requiring a flood of follow-on cases in order to wipe the regulatory slate clean.

Aside from the jurisdictional challenges (which may turn into docket management challenges if an ex post anti-avoidance decision for industry Z sets off a deluge of follow-on suits from regulated parties subject to earlier rules in the sequence), ex post anti-avoidance confronts courts with the challenge of determining which rules are sufficiently similar that they should be considered as part of the aggregate that is analyzed for majorness. Not all regulatory sequences will announce themselves as clearly as the alphabetical examples in this Article. And the aggregation challenge will prove particularly burdensome in the lumping context, where aggregation requires a comparison of regulations promulgated under different statutory authorities. Granted, courts make difficult determinations of similarity in other settings—ranging from anti-discrimination law to antitrust law—though, in many of those settings, courts struggle with the similarity inquiry.¹⁸⁶ What we can say with confidence is that while ex post avoidance may not be impossible, it will place new doctrinal-development demands on the judiciary.

Finally, the most significant challenge for ex post anti-avoidance is that it may come too late to change on-the-ground realities. Most of the Court’s major questions cases—including the COVID-19 vaccine mandate case,¹⁸⁷ the Clean Power Plan case,¹⁸⁸ and the student loan case¹⁸⁹—reached the Court in a pre-enforcement posture. Once a rule has gone into effect and parties have begun to comply—once vaccine doses have gone into arms or scrubbers have been installed on power plants—those regulatory consequences are difficult to undo. That was the rationale for the Court’s Abbott Labs doctrine favoring pre-enforcement review of regulatory action: if a court decision was to shield regulated parties from a rule’s consequences, the decision ought to come before parties “change[d] all their labels, advertisements, and promotional materials,” “destroy[ed] stocks,” and “invest[ed] heavily in . . . new supplies.”¹⁹⁰ With ex post anti-avoidance, by contrast, rule R_a might remain in force for industry A for several months or years before a court concludes in an industry Z case that the agency’s sequence of rules R_a through R_z trigger major questions scrutiny. Thus, even if courts can overcome the judicial manageability challenges of ex post anti-avoidance, agencies still will have opportunities to reshape entire industries before ex post anti-avoidance cuts off their regulatory efforts.

Conclusion

Major questions avoidance illustrates the concept of question size elasticity in both directions. Not only can a larger regulatory question be subdivided into several smaller ones, but the seemingly self-contained topic of major questions avoidance also inspires much larger theoretical and empirical inquiries that go to the heart and soul of the modern administrative state. Predicting the probability of major questions avoidance required us to delve deeply into the motives of agency officials. Evaluating the normative desirability of avoidance necessitated a broader theory of administrative state legitimacy. And playing out the chess match of anti-avoidance highlighted the limits of judicial power: when agencies respond strategically to new administrative law doctrines, courts will struggle to counter the agencies’ moves—especially when the clock is running and regulations that are in force only temporarily can have permanent practical effects.

With respect to all the major questions raised by major questions avoidance and anti-avoidance, our answers at this early stage are—and can be—only tentative. What already seems clear, though, is that careful and critical reflection on the empirical, normative, and jurisprudential dimensions of major questions avoidance and anti-avoidance can generate insights that travel far beyond the major question doctrine’s domain. Mapping and exploring the terrain of major questions avoidance and anti-avoidance can give us a clearer view of the theories that justify agency power and the extent to which that power can be constrained by the judiciary. In the end, major questions avoidance and anti-avoidance—whether or not they are desirable developments—have the virtue of offering us a new, richer, and more nuanced perspective on both the legitimacy and the adaptability of the modern administrative state.

98 S. Cal. L. Rev. 1497

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Daniel J. Hemel*

*Professor of Law, New York University School of Law. For helpful comments, the author thanks Beau Baumann, Blake Emerson, Barry Friedman, Jonathan Gould, Oren Tamir, and participants in workshops at the New York University School of Law and the University of Southern California Gould School of Law. Bhargav Tata provided excellent research assistance.

The Supervisory Power of State Supreme Courts

October 2025October 2025Adam B. Sopko*

State supreme courts are currently center stage as they face some of the most important issues of our time. But nearly all of the attention is focused on their ability to interpret state constitutions to provide rights guarantees that the U.S. Supreme Court has diminished or eliminated from the Federal Constitution. While important, judicial review is but one instance of a state high court’s authority. Their supervisory power—the primary source of judicial administrative authority—has served as a vital source of policymaking power to safeguard individual rights and enhance the public good. Supreme courts have relied on their supervisory power to reimagine state criminal justice systems, reduce homelessness, strengthen voting rights, expand protections for immigrants, and more. Despite its significance, this feature of state court practice has gone virtually unnoticed. As advocates increasingly look to state courts to address more and more of society’s complex and consequential issues, this distinctive aspect of their power is worth exploring.

This Article unpacks the supervisory power by mapping its sources, applications, and limits. The supervisory power has a basis in all fifty state constitutions and enables supreme courts to oversee their judiciary’s workload and operations. But as this Article shows, high courts are using this power beyond the humdrum of judicial administration to enhance substantive rights and remedies, facilitate their law development and agenda-setting capabilities, and mediate interbranch frictions. This Article’s core claim is that these more expansive applications of the supervisory power are generally defensible based on the evolution of state judiciaries and supreme courts’ unique roles in state governments. The twentieth century saw a dramatic reimagining of state high courts from inferior instruments for the other branches to powerful, coordinate members of the state policymaking apparatus. In addition to overseeing the judiciary’s operations, the supervisory power thus plays an important role in a high court’s ability to contribute to state governance.

This account of the supervisory power is broad but not unlimited. The Article highlights the supervisory power’s internal and external limits and sketches its metes and bounds to help frame its future applications. The Article then considers this judicial practice within larger debates on judicial policymaking and state constitutional structure. It engages with critiques of a more active judicial role and lawmaking powers. It explains that the key institutional assumptions behind such assessments do not map so easily onto the unique structure of state judiciaries. Stepping back, the Article encourages a broader but more nuanced view of state judicial power and the function of state high courts that wield it.

Introduction

In recent years, advocates have increasingly looked to state judiciaries to serve as a backstop against federal rights retrenchment.¹ More and more, state high courts are taking up some of the most consequential issues of our time, ranging from abortion rights and climate change to gender and racial equality.² Driving this turn to the states is the realization that state supreme courts can interpret state constitutions to provide greater rights protections than their federal counterpart.³

But as some court scholars have reminded us, a narrow focus on judicial review risks an incomplete understanding of how these institutions function.⁴ For those who study state courts, limiting our attention to conventional features of judicial power is more likely to result in undertheorized conceptions of what it is state courts do. However, for those looking to state courts as a possible response to regressive federal policies, such a singular view risks overlooking the full potential of state judiciaries. Indeed, for state high courts, their supervisory power—the primary source of their administrative authority—has played an essential part in their roles as constitutional innovators and in providing for the public good.

The supervisory authority is a freestanding source of flexible, discretionary power.⁵ It can supplement or enhance other aspects of court authority, as well as serve as a standalone basis for judicial action. It is not subject to many of the traditional limits on judicial authority, like justiciability and stare decisis, enabling courts to act where they might otherwise be unable to. And courts can use the power through adjudication as well as outside of resolving a case. Thus, at its most basic level, the power enhances a state supreme court’s capacity.⁶

The supervisory power has roots in all fifty state constitutions and provides the authority for supreme courts to manage the judiciary. It enables them to oversee judiciary personnel, control the court systems’ workloads, and supervise their general operations.⁷ Courts rely on this power to close courthouses due to inclement weather, impose workplace vaccination policies for judiciary personnel, manage complex litigation, revise and implement new jury instructions, and more.

However, this Article shows that state high courts use the power for much more than that. Indeed, despite its seemingly managerial focus, state supreme courts have relied on their supervisory power to craft sub-constitutional rights, strike statutes, and fill policy gaps left by the legislative and executive branches, among other more expansive applications.

In the past few years alone, the supervisory power has been at the center of some of the highest-profile cases in state courts. For example, following a report revealing a Massachusetts drug lab had fabricated evidence in thousands of cases over several years, the Commonwealth’s highest court fashioned a historic remedy, ordering dismissal of more than 24,000 convictions obtained as a result of the lab’s work.⁸ Several states have reformed their jury systems, emphasizing the harsh realities of racial bias in jury selection, porous nature of federal constitutional protections, and the bleak outlook at the U.S. Supreme Court for revitalizing relevant doctrines.⁹ Nearly a dozen supreme courts sought to limit the harms associated with homelessness in their states during the COVID-19 pandemic by preventing trial courts from hearing eviction proceedings.

Additional examples abound. High courts have relied on their supervisory power to craft sub-constitutional privacy rights; enhance administrative protections for incarcerated people; provide a right to civil representation for indigent parties; allow non-parties to appeal adverse decisions; and facilitate global settlements in complex civil cases.¹⁰ Further, courts have used their supervisory power to collaborate with other branches to make policies across a host of important areas, ranging from public health to criminal justice to housing.

Many of these examples drew national attention and helped highlight the possibilities and promise that lie in state institutions to make our legal system more just.¹¹ But while the spotlight shined on the outcomes themselves, what made them possible largely remained in the shadows—the courts’ supervisory power.

Like state high courts, the U.S. Supreme Court has supervisory power as well. To sharpen our understanding of the state-court power, we should consider its federal counterpart, too. As we shall see, the two differ in important ways. The federal supervisory power is rarely used, narrower in scope, and less powerful. Despite this asymmetry, the U.S. Supreme Court’s supervisory power has attracted a significant amount of scholarly attention.¹² That literature has largely viewed the power with skepticism.¹³ Critics question its legitimacy because it lacks a plausible source, is inconsistent with the Court’s role, and is in tension with federal separation-of-powers principles.¹⁴

Things look very different in the states. The supervisory power is a regular part of supreme court practice; its applications are more expansive, and it is significantly more potent than its federal analogue.¹⁵ Further, state supreme courts invoke the supervisory authority proactively, instead of waiting for parties to file suit, challenging certain institutional assumptions as to how courts exercise authority.¹⁶ Despite its significance, the state supervisory power has generated little scholarly attention. This Article thus shines a light on a consequential yet overlooked aspect of state court practice.

The Article’s core claim is that these more expansive applications of the supervisory power are a generally defensible aspect of state supreme court practice that follows from the modern institutional development of state high courts and can be defended as a distinctive feature of their role in state governance.

To advance this thesis, Part I begins by exploring where the supervisory power comes from. It first canvasses all fifty state constitutions, showing that the power has a basis in each state charter. That constitutional foundation alone, however, does not provide the supervisory power’s full genealogy. Part I thus turns to how the relevant state constitutional provisions came to be—as well as the institutional developments that prompted them. It traces the evolution of modern state supreme courts and their need for broad, flexible sources of power. During the twentieth century, state court reformers like Roscoe Pound and the American Judicature Society sought to elevate state judiciaries from simply a collection of courts to a meaningful, coordinate branch. Their efforts changed the structure of court systems, the role of supreme courts in state governance, and the scope of supreme court authority. They gave supreme courts more power—namely, the supervisory power—and revised the background assumptions that governed how courts use it. That background tells us where the supervisory authority came from and provides context for understanding the broader applications at the heart of this Article.

Part II presents a descriptive account of the supervisory authority, highlighting state high courts’ more expansive applications of the power. That account shows us that state supervisory practice is vast and varied. To account for this complexity, the Article provides a taxonomy that describes both the power’s many functions and its key attributes. It shows that the power is a highly flexible, potent form of judicial authority that enables supreme courts to effectuate the judiciary’s prerogatives as well as the public interest. This account is deepened by considering its federal counterpart. A brief review of the U.S. Supreme Court’s supervisory power demonstrates that state supervisory power differs in kind—a feature of state court practice that exceeds the boundaries surrounding its federal analogue.

Part II presents a broad, potent, and highly discretionary form of judicial power. However, the supervisory power is not unlimited. Part III explores its boundaries and limits. To account for the power’s breadth and flexibility, I draw on case law, state constitutional structure, and social science literature to propose a model I refer to as the zone of supervision that sketches the perimeter of the power’s permissible uses. I then turn to how courts are sanctioned when they step outside their zone of supervision. In short, state

constitutional structure provides tools to control and limit judicial power when courts exceed their zone of supervision.

Finally, Part IV considers the supervisory power’s theoretical and normative implications. At a conceptual level, this Article’s account of the supervisory power expands our understanding of supreme courts’ policymaking capacities and roles within a state’s broader governance apparatus. As a normative matter, Part IV considers the arguments against expansive notions of judicial policymaking and concludes such criticisms are based on institutional assumptions that do not track state judicial structures. Thus, broad uses of the supervisory power are not per se problematic; we should instead evaluate each use on a retail level with regard to a court’s own zone of supervision.

Stepping back, this Article makes three contributions. First, it offers a taxonomy that maps supreme courts’ varied uses of their supervisory power and its key attributes. Second, it plots the supervisory power’s limits and proposes a model that explains prior uses of the supervisory power and helps frame its application in the future. Finally, this Article makes a normative claim, arguing that supreme courts’ expansive uses of their supervisory power are a generally defensible and legitimate feature of state court practice.

One additional note before proceeding: this Article is in service of a larger project to understand state courts and their role in state governance. For years, these institutions have largely occupied a scholarly “backwater.”¹⁷ But as we have seen, that relative inattention to state courts has surfaced at the heart of some of the most pressing issues of our time, complicating those questions in the context of both state and federal public law.¹⁸ To that end, this Article’s thesis supports a broader call to conceive of state courts on their

own terms.¹⁹ We should not presume that frames and norms born in the federal courts are appropriate, ideal, or even applicable to state courts. Instead, these institutions deserve their own investment to surface their puzzles and better understand their possibilities.

I. The Creation of State Judiciaries and the Supervisory Power

The supervisory power is the lifeblood of state supreme courts. As this Article shows, it enables them to facilitate the judiciary’s day-to-day operations, protect their institutional interests, advance their prerogatives as a coequal branch in state governance, and more. To understand this power, then, we must evaluate both how it came to be and its relationship to courts’ institutional identities. This Part takes up that task. As shown in the first Section below, the supervisory authority is a constitutional power—it claims a constitutional basis in all fifty states, either through express provision or judicial interpretation of more general language.

But these constitutional roots do not tell us everything. We must also consider the creation of the underlying state constitutional provisions—and the institutions they empower. The second Section traces that story by exploring the institutional development of modern state supreme courts and its connection to the supervisory power. State court reform efforts during the twentieth century sought to elevate state judiciaries from simply a collection of courts to a meaningful coordinate branch. Those efforts changed the structure of court systems, their role in state governance, and the scope of supreme court authority. They gave supreme courts more power—namely, the supervisory power—and revised the background assumptions that governed how courts use it. Those changes set the baseline for both the institution and modern supervisory practice.

Before turning to where the supervisory power comes from, we should note this Article’s definition of the concept. State courts have rarely provided a clear description of the power. They have largely relied on vague statements and citations to capture the wide universe of how they use the power.²⁰ This Article’s definition reflects that ambiguity but attempts to bring clarity to the concept through a synthesis of this distinctive court practice within states and across them.

The supervisory authority is a power that state high courts possess either because it is expressly provided by a state’s constitution or because courts have adopted it by construing more general constitutional provisions.²¹ It is the primary source of administrative authority for state high courts to oversee the judiciary. It facilitates judicial administration, personnel management, and general control of the court system’s workload and operations. Those categories include both judiciary policymaking and case management decisions.²² While this power may at times implicate other aspects of supreme court authority, like regulatory oversight of the practice of law and judicial discipline, courts typically understand these powers as distinct from their supervisory authority.

Figure 1 below approximates the relative relationship between the supervisory power and more familiar forms of judicial authority.

Figure 1. The Supervisory Power versus Other Forms of Court Power

These forms of power overlap because the supervisory authority is its own standalone source of power that courts use as the sole source of a decision. But courts can also rely on the power to supplement other aspects of their authority. For example, to enhance its powers of ordinary judicial review, a court might use its supervisory power to override justiciability defects or find that a party has violated a statute and use its supervisory power to enhance an ordinary remedy.

It can also supplement other distinct forms of judicial power, like courts’ disciplinary authority over judges. For example, a supreme court’s formal disciplinary authority may avail it of only a limited number of sanctions—suspending a judge or removing them—whereas the court can discipline judges in other ways that fall below such penalties via the supervisory power, like transferring a case away from a judge for misbehavior that does not rise to the level of formal suspension or removal. These brief examples highlight the supervisory power’s hallmark of flexibility and informality, which I discuss in more detail in Section II.A.

To be sure, this simplistic diagram does not fully capture the supervisory power’s nuance. That is best demonstrated through the examples provided in Part II. This rough sketch is designed to help complement the basic definition provided above as well as the more detailed historical and doctrinal discussions that follow.

A. State Constitutional Roots

State high courts in all fifty states claim a constitutional basis for their supervisory power. In thirty-two states, high courts locate the supervisory power in the text of their state constitution. The language differs somewhat from state to state, but formulations include “[g]eneral administrative and supervisory authority,” “administrative supervision over all the courts of the state,” “general supervision and control of courts of inferior jurisdiction,” “general superintending control over all inferior courts,” “administration and supervision,” and so on. These clauses vest this power in the supreme court, the chief justice, or both. Of these states, twenty-one have a clause that explicitly refers to a supervisory authority.²³ In the other eleven states, courts rely on the constitution’s general grant of judicial power or another specific clause,²⁴ infer the power from multiple clauses related to the judiciary,²⁵ or from the judiciary article as a whole.²⁶

A further ten supreme courts refer to their supervisory authority as an “inherent” power, one that necessarily flows from the structure of the state’s judiciary and the position of the court at the top of the judicial hierarchy.²⁷ One could fairly describe these states as constitutional as well, since the underlying judicial structure, like the supreme court itself, is a creature of the state constitution.

In another six states, the supervisory power is said to come from both the states’ constitutions and a statutes.²⁸ In the remaining two states, the source of the supreme court’s supervisory power is unclear; the high courts have either declined to offer an explanation or have offered competing explanations without a clear basis to suggest why one may be correct versus the other.²⁹

To be sure, there are additional nuances behind these descriptions and categories. In the hybrid states, all six supreme courts have said expressly that their power comes from both their statutes and their states’ constitutions. However, a close reading of their opinions suggests those may be more claims of form than of substance. Indeed, in five of those six states, courts have noted in footnotes or suggested in dicta that the statute simply recognizes the authority codified in the state constitution—it does not provide it—and that even if the underlying statutes were repealed, their power would not change.³⁰

While it is helpful to know that all state high courts recognize their supervisory authority as a constitutional power, that does not fully account for how courts use it. To deepen our understanding of the supervisory authority, we must consider how the underlying state constitutional provisions came to be by tracing the formation of modern state supreme

courts. As we shall see, that story helps explain this feature of state court practice and provides insights into its normative implications.

B. The Development of Modern State Supreme Courts

This Section reviews the institutional development of state supreme courts and the connection to their supervisory power.

It begins with the need for state judicial reform in the early twentieth century. The diagnosis for these changes came from Roscoe Pound, who argued in 1906 that America’s state courts were too disorganized and complicated, and that their operations and administration were subject to excessive legislative and executive oversight. At the heart of Pound’s critique was the observation that state governments had two branches—executive and legislative—and a collection of courts; they “d[id] not have any true judicial department.”³¹ This observation served as the central theme for the court reform movement.

This Section then examines the changes themselves and their relevance to supervisory practice. In brief, the various reforms to elevate state judiciaries to meaningfully serve as coordinate branches affected the structure of court systems, their role in state governance, and the scope of supreme court authority. Importantly, the court reform movement gave supreme courts more power—namely the supervisory power—and revised the background assumptions that governed how they use it. Those changes set the baseline for both the institution and modern practice.

1. The Need for Reform

From the colonial era through the nineteenth century, state judiciaries largely consisted of complex, fragmented networks of courts. Borrowing from the English tradition, there was a court for nearly every kind of case—admiralty, civil, criminal, equity, probate, et cetera—distributed across a multitude of jurisdictions—city, village, state, et cetera.³² Their jurisdiction often overlapped, and they relied on highly formal, complicated rules of practice and pleading.³³ Suits frequently bounced between courts for years due to being improperly pled for a given forum, and when a case finally reached the proper forum, courts often resolved it on procedural grounds rather than on the merits.³⁴ As a result, routine litigation was incredibly slow, unpredictable, and primarily an “elaborate contest of lawyerly arts.”³⁵

Institutionally, state courts were generally weak and insufficiently insulated from other branches, allowing them to intrude on judicial prerogatives and strong-arm their decision-making. Local governments were typically the source of funding for much of the early state court systems, creating perverse incentives for local political regimes to influence judicial behavior.³⁶ Similarly, legislatures asserted a significant amount of oversight into judicial administration, especially rulemaking.³⁷ They were typically slow to respond to necessary changes to procedural rules, made litigation even more complicated when they did, and used their rulemaking power for patronage and to advance partisan interests and patronage.³⁸

By the turn of the twentieth century, the public viewed state courts as too slow, complex, ineffective, and politicized.³⁹ Enter Roscoe Pound. In a (now famous) speech, The Causes of Popular Dissatisfaction with the Administration of Justice, Pound diagnosed the many flaws and inadequacies in state courts and proposed a solution: a unified court system.⁴⁰ He “attack[ed]” the existing approach to judicial administration in state courts as overly technical and inefficient, rendering courts largely ineffective.⁴¹ He would refine his model judiciary over the subsequent decades, but at the heart of his vision, which served as the intellectual foundation for the state courts we have today, was the goal that “[u]nification . . . result in a real judicial department as a department of government.”⁴²

Pound’s basic view was that judiciaries should consist of a fixed number of courts organized into two or three tiers (e.g., local and statewide trial courts and a supreme court), and that courts use a set of streamlined procedural rules to resolve cases on their merits more often and rely on a set of streamlined procedural rules.⁴³ He also emphasized the need to vest supervisory power in a supreme court, free from legislative override, to oversee the functioning of all judiciary business.⁴⁴ Without these elements, he argued, a state could not have a “true judicial department.”⁴⁵

2. State Court Modernization

Pound’s diagnosis and proposed intervention of a unified judiciary served as catalysts for broader efforts to reimagine state judiciaries. Over the twentieth century, leading scholars like Henry Wigmore and Arthur Vanderbilt, and national organizations like the American Bar Association and American Judicature Society, among others, all built upon Pound’s conceptual foundation by proposing a variety of model judiciary articles for states to adopt in their constitutions.⁴⁶ By mid-century, reformers were in accord that their stated mission could not be accomplished unless state judiciaries had the ability and authority to control their businesses.⁴⁷ This linkage between establishing state judiciaries as independent, coequal branches of government and centralizing control over their operations was a central theme of the reform efforts in the latter half of the twentieth century and is largely what spawned the supervisory power we know today.⁴⁸

Ensuring that supreme courts had the capacity to oversee the judicial branch and function as a coequal branch in state governance motivated many of the judicial innovations we see in current state constitutions. Consolidating and centralizing the many courts within state systems in favor of a clear hierarchy, with the supreme court at the top, ensured a clear chain of command and control over cases and administrative business. Supreme courts were given greater (in many instances, plenary) control over procedural and administrative rulemaking as well.⁴⁹ Together, these changes gave the judiciary absolute autonomy over workload—enabling the supreme court to transfer cases and judges to optimize court resources and craft rules that better met the needs of the judiciary and litigants.

One particular reform along these lines warrants additional discussion: the streamlining of supreme courts’ prerogative writ power. Prerogative writs—mandamus, habeas corpus, prohibition, certiorari, and quo warranto—date back to seventeenth-century England, where they “made up the heart of the supervisory powers of King’s Bench.”⁵⁰ At bottom, these extraordinary forms of relief provided control over lower courts to “secure the lawful and effective administration of justice.”⁵¹ Indeed, for much of their existence, “[t]he authority that a state supreme court exercised over lower courts was generally confined to [prerogative writs]” or writs of error—that is, what we might understand today as an ordinary appeal.⁵² Relief would be issued in summary fashion where remedies at law were unavailable or unable to address the alleged harm. These writs were tools to ensure justice was done if and when a lower court erred in some extraordinary fashion.

That early practice formed the basis for the power wielded by state supreme courts after the founding.⁵³ State high courts referred to their prerogative writ power in sweeping terms: “hampered by no specific rules or means,”⁵⁴ “unlimited,”⁵⁵ “plenary.”⁵⁶ This was because prerogative writs were designed to prevent an “injustice” caused by a lower tribunal, and such errors could come in many forms; thus, the remedial power necessarily had to be sufficiently flexible and adaptable.⁵⁷

Despite this intended flexibility, state prerogative writ practice nevertheless operated within the procedural norms of the time and thus was subject to the same complexity and formality that sparked the reform movement. Indeed, the broader effort to streamline procedure and practice in state courts included the prerogative writ system.⁵⁸ Innovations included “all writs” or “in lieu of prerogative writs” amendments in state constitutions.⁵⁹ These provisions vested more power in supreme courts to provide relief in instances that might not have fallen easily into existing categories and more discretion to grant relief notwithstanding technical errors from a petitioner that would have otherwise foreclosed a remedy under prior practices. In other words, distinct from ordinary appellate review, this reform enabled high courts to intervene at any stage of litigation to correct an error or omission that is sufficiently unfair or unjust.⁶⁰

In addition to prerogative writ powers, changes to state judicial articles granted supreme courts administrative powers, explicitly granting them policymaking power to issue orders and directives to govern judiciary and non-court personnel alike. Relatedly, courts were given regulatory authority over judges and the state bar in the form of disciplinary power.⁶¹ Reformers also recognized that these changes to court structure necessitated a “soft[er]” side to court business.⁶² As a truly coequal branch, judiciaries require the ability to engage in “high politics” to maintain their prerogatives.⁶³ Indeed, as one commentator noted, such capacity is “essential” to realizing the reform movement’s larger goal of elevating the judiciary above a mere collection of courts.⁶⁴ Formal design choices and informal norms, like placing the chief justice as the head of the court system, regularizing the chief’s political responsibilities, and creating government relations offices within the judiciary, for instance, help foster this capability.⁶⁵ All of these changes flow from the need for the supreme court to supervise and oversee

the operations of the court system and each resulted in an expansion of judicial power.⁶⁶

New Jersey was the first state to implement “modern court” reforms.⁶⁷ Numerous states followed suit in subsequent decades, as reformers and scholars continued to refine the ideal judiciary structure and model constitutional article.⁶⁸ This interstate variation sparked a substantial debate among scholars as to what constitutes a truly “unified” judiciary—that is, which features distinguish unified from non-unified states.⁶⁹ By the early 2000s, over half of state judiciaries referred to their court systems as “unified,” notwithstanding significant structural and administrative differences between them.⁷⁰ Due to the widespread, but inconsistent, approach to unification by courts and conceptual disagreements among scholars, commentators have increasingly downplayed the value of evaluating unification at a retail level, with a granular focus on precise constitutional provisions.⁷¹ Instead, viewing the concept at wholesale emphasizes the reformers’ goal of establishing state judiciaries as coordinate branches of government and the associated changes in judicial perceptions and identity.

3. State Supreme Courts and State Governance

The accretion of these reforms had a significant impact on the identity of state supreme courts and informs the supervisory practice as we know it today. Specifically, there are two overlapping effects from the court reform movement that offer support for this conception of the supervisory authority. One concerns the ascendancy of state high courts’ role as a policymaker in state governance. The other relates to the increasing importance of independence for the newly established concept of a coequal branch.

The modern court reform movement came on the heels of broader governmental changes at the state level. These changes significantly influenced the policymaking capacity of state high courts. As Alan Tarr has shown, twentieth-century court reform sprang from a larger effort to shift the largely plenary policymaking power away from state legislatures.⁷² Rather than a commitment to advancing the general welfare, legislators overwhelmingly pursued personal patronage and partisan interests.⁷³ Indeed, by the middle of the nineteenth century, it was apparent that organizing governance around the legislature, based on the idea that they are the most democratic, and thus most responsive branch, proved to be a mistake.⁷⁴

State constitutions were revised to place a substantial number of limits on legislative power, like single-subject rules, the creation of legislative sessions, and “positive” rights. These and related changes enhanced the level of judicial review applicable in state government. Relatedly, courts were increasingly seen as the primary “safeguard against slipshod government” in the states.⁷⁵ Thus, in addition to a more expansive conception of judicial power, these design choices supported the concept of a more active, engaged judiciary.

Further, as part of the larger project of decentralizing policymaking power, state high courts were folded more directly into the state governance apparatus. In addition to their existing ability to craft new causes of action under the common law, courts were given the power to oversee the regulation of the practice of law and judicial discipline,⁷⁶ and they were vested with the authority to exercise appointment powers,⁷⁷ direct prosecutorial discretion,⁷⁸ and issue advisory opinions.⁷⁹ Others were given responsibilities to oversee statutory reform and participate in the legislative apportionment process. Some were even tasked with determining when officials in coordinate branches are no longer able to discharge their duties.

In addition to diffusing policy and governance powers to the courts, other reform-era changes enhanced supreme courts’ policymaking capacity —most notably, the prevalence of discretionary appellate jurisdiction and the creation of intermediate appellate courts. These innovations shifted high courts from a position of mechanical error correction to one of law development. These conceptual changes were broadly felt too, as no one particular combination of reforms was necessarily responsible for shifting a state high court from a reactive, adjudicatory body that intervenes as a last resort, to an engaged, proactive agent of state governance.⁸⁰ Indeed, as Robert Kagan and others have shown, this story of institutional development reflects the “societal consensus” at the time that state supreme courts should serve as coequal participants in state governance who, like the other branches, wield their power to provide for the states’ general welfare.⁸¹

The second relevant factor is the increasing importance of judicial independence—specifically, what that means and its linkage to the supervisory power. Before the court reform movement, considerations of independence were focused on judges—ensuring they were properly insulated to make unpopular decisions—but not on the judiciary itself.⁸² This makes a certain amount of sense, as state judiciaries, as a singular branch of government, were functionally nonexistent, so there was no real institution to protect. They lacked a clear political head, relied almost entirely on the other branches for operations and administration, and were funded by local governments. Institutional independence thus came not from the judiciary’s standing as a branch of government but from the independence each individual judge enjoyed.⁸³

But the reform efforts changed this. As Robert Tobin and Michael Buenger have shown, what emerged is an institutional identity of state judiciaries.⁸⁴ As noted above, the modern court reform movement came on the heels of broader state-level governmental changes.⁸⁵ Those structural changes included experimenting with various methods of judicial selection, like popular elections and various formulations of merit selection, that would ensure greater independence of state court judges wielding this enhanced policymaking power.⁸⁶

Within these broader changes were the more specific judicial reforms discussed above. Relevant here, unification centralized more responsibilities in state judiciaries by assigning control over more programs and social services, vesting administrative and operational control in the judiciary itself —including budgetary decisions—and enhancing the scope of available judicial power to manage this construct.⁸⁷ As a result, the influence of state courts relative to coordinate branches grew tremendously.⁸⁸ Whereas in the past, state judiciaries posed a modest political threat to other branches, their elevation as a coordinate, unified branch thrust state courts deep into the political thicket. Their increased power and influence posed potential threats to the prerogatives and interests of other, now coordinate, branches.⁸⁹

The reform movement thus imposed more responsibilities for non-adjudicative services onto judiciaries, made them more publicly accountable, and increased the level of inter-branch friction. These changes reestablished a baseline assumption of both supreme courts’ role and authority.⁹⁰ These assumptions tracked the central themes of Pound and the other reformers, including the necessity that high courts wield a broad supervisory power to operate the newly established judicial branch.⁹¹ Further, the changes incentivized courts to develop identities that accounted for both their institutional interests as an independent branch of government, as well as the interests of the public, the primary source of accountability. It is in this institutional context that state high courts wield their supervisory power.

II. The Supervisory Power IN the U.S. and State Supreme Courts

Part I explored the source of the supervisory power by highlighting its constitutional basis in all fifty state charters. It further examined the historical context behind these state judicial articles and the broader institutional development that prompted them. At the center of that discussion is the growth of state judiciaries as meaningfully coequal branches, the expansion of the judicial role in state government, and the enhancement of supreme court power. That story provides helpful context for understanding the broader applications of the supervisory power at the heart of this Article.

This Part takes up the question of application by synthesizing the nature of the supervisory power and the ways state high courts use it. It provides a taxonomy that organizes the vast supervisory practice and distills the power’s hallmark features. To deepen our understanding of this aspect of state court practice, this Part considers the U.S. Supreme Court’s supervisory power, as well. That comparison further illustrates the breadth and scope of the state power and raises normative implications taken up in Part III.

A. State Supreme Court Supervisory Power

This Section provides an overview of the nature of the supervisory power as well as the ways state supreme courts use it. It draws on a survey of all fifty state high courts. The survey began with a review of judiciary articles in state constitutions as well as statutory codes to derive a set of keywords. Westlaw searches were then conducted for each state.⁹² Since documents germane to this study, like administrative orders, are rarely collected by Westlaw, judiciary websites were also searched. Due to the significant limitations on access to state court documents,⁹³ secondary sources were also consulted.

This Article’s primary descriptive contribution is surfacing and typologizing the many in which ways state high courts use their supervisory power beyond its quotidian administrative applications. To name a few, it can expand substantive rights and enhance remedies; facilitate supreme courts’ law development and agenda-setting capacities; and help mediate interbranch frictions. In short, the supervisory power expands state supreme court capacity. It can supplement or enhance other aspects of court authority, as well as serve as a standalone basis for judicial action. It is immune from many of the traditional limits on judicial power (e.g., justiciability) and can be wielded both outside and inside of adjudication. To be sure, this Article’s definition describes a vast landscape of judicial practice. As the first Article to provide a comprehensive review of the supervisory power’s more expansive applications,⁹⁴ greater explication is needed to understand the concept. This Part takes up that task by sketching the many uses for which state high courts rely on the supervisory power.⁹⁵ It then provides a holistic account of the nature of the power.⁹⁶

Uses

Uses of the supervisory power by state supreme courts are nuanced and varied. To demonstrate that breadth and complexity, this Section includes applications that are both representative and illustrative of state high court practice. This Section also provides a taxonomy to further conceptualize the power and its institutional implications.

One important descriptive insight this Article offers is that state court use of the supervisory power is not limited to the litigation context. Thus, this Section distinguishes between adjudicative and non-adjudicative uses.

a. Adjudicative

First consider the ways courts use their supervisory power in the course of adjudicating disputes.

i. Rights and Remedies

State supreme courts frequently rely on their supervisory power to reinforce constitutional and statutory rights. This most often comes in the form of ad hoc procedural rules or frameworks that enhance underlying substantive rights, like due process or protections against unreasonable searches. Courts also rely on the power to enhance or expand ordinary remedies. Some have even used their supervisory authority to craft substantive protections from outside their constitution’s bill of rights.

As to ad hoc rules and additional procedures, some state high courts have fashioned rules and procedures that exceed substantive protections under both the state and federal constitutions. For example, courts have enhanced the showing required for criminal defendants to waive counsel; strengthened protections for effective assistance of counsel; and extended the provision of assigned counsel to municipal court proceedings—all under the supervisory power.⁹⁷ Such applications are common among state high courts and, as discussed below, this aspect of state supervisory practice is distinguishable from the U.S. Supreme Court’s narrower approach.⁹⁸

While less common, some state supreme courts have used their supervisory power to craft sub-constitutional substantive rights. Here, courts are announcing a rule under the supervisory power (rather than, e.g., the Speedy Trial Clause or Free Speech Clause) but drawing on constitutional values and principles for its content. New York’s high court, for instance, has developed a privacy right based on the “spirit of the Constitution,” and the Michigan Supreme Court has crafted substantive protections for certain grand jury indictees.⁹⁹ These decisions resemble common-law-like reasoning and center both on an abstract value (e.g., fairness) as well as the proper functioning of the legal system. Indeed, the New Jersey Supreme Court’s “fairness and rightness doctrine,” a body of law that includes several sub-constitutional substantive and procedural rights, is the product of its supervisory authority.¹⁰⁰

Beyond rights, courts also rely on the power to enhance remedies. Specifically, courts use their authority to fashion extraordinary remedies for violations of constitutional and statutory rights and obligations.¹⁰¹ Along these lines, the Massachusetts Supreme Judicial Court’s order discussed in the introduction illustrates how some courts use their supervisory power as a way to provide broad, systemic relief.¹⁰² It is also used to fashion remedies for conduct that is not prohibited by statute or constitution but nevertheless violates notions of “justice,” “fairness,” and the “proper administration” of the criminal justice system.¹⁰³ The key insight here is that courts understand the supervisory power as sufficiently flexible to remedy the variety of forms unfairness and threats to the proper administration of justice may take.¹⁰⁴

The uses thus far have focused on systemic applications to address “pervasive” inefficiencies or injustices. But the supervisory power serves as a tool to correct perceived unfairness for individual litigants as well.¹⁰⁵ As explained in more detail above, this common feature of the supervisory power is a progeny of state high courts’ prerogative writ power.¹⁰⁶ Courts often refer to their supervisory power as a product or consequence of this historical practice.¹⁰⁷ In these cases, courts use their power, via original petition, interlocutory motion, or sua sponte, to correct some aspect of a case, often before a final judgment. The purpose behind this aspect of supervisory practice is “to ensure public confidence in the integrity and fairness of the judicial system.”¹⁰⁸ Accordingly, applications vary widely from revising discovery rulings¹⁰⁹ and correcting improper sentencing procedures¹¹⁰ to modifying the scope of lower-court rulings¹¹¹ and addressing explicit judicial bias mid-trial.¹¹² The representative case among all state judiciaries is where a lower court has erred, with respect to either applying binding law or discretionary decision-making, and where the resulting prejudice cannot be remedied on appeal. However, in some states, high courts have used the supervisory power along these lines where appellate relief was sufficient.¹¹³

ii. Law Development

As the courts of last resort in their respective states, supreme courts are tasked with addressing matters of first impression, updating precedents where necessary, and shepherding the state’s common law, among other law development responsibilities.¹¹⁴ The supervisory power plays an active part in supporting this duty. It serves as a tool to provide more control over what a high court decides and when it decides it.

First, courts rely on the power to reach the merits in cases—a necessary part of doctrinal development. Courts can sua sponte reach cases not presently before them by transferring suits pending in lower courts,¹¹⁵ as well as reach issues not fully developed or raised by parties once a case reaches their docket.¹¹⁶ Additionally, the supervisory power overrides many of the conventional limitations on judicial power and party presentation that may limit judicial review and thus limit a court’s ability to guide state law.

For example, supreme courts from Alabama to Hawaii have said traditional standing and mootness rules do not limit the court’s supervisory power, meaning they can resolve an otherwise nonjusticiable case.¹¹⁷ At least one court has said explicitly that stare decisis does not attach to the court’s supervisory authority;¹¹⁸ others have implied as much.¹¹⁹ In several states, supreme courts have said their supervisory power exceeds the boundaries of subject-matter jurisdiction.¹²⁰ Despite the traditional rule that “[o]ne who is not a party to an action . . . is not entitled to appeal from the judgment of a lower court,” the supreme courts of Iowa and North Carolina have relied on their supervisory power to review appeals filed by non-parties to the underlying suit.¹²¹ The high courts in several states have said filings are not necessary to invoke the supervisory power.¹²² Nor are cases that lack a statutory or constitutional basis for review necessarily beyond a court’s reach.¹²³

Once a case is before a supreme court, various party presentation requirements, like issue preservation, can narrow the scope of judicial review, limiting the reach of a court’s intervention. However, the supervisory power can override these rules as well.¹²⁴ Moreover, courts suspend customary finality requirements, which often exclude certain cases from appellate review until they have reached some level of resolution, enabling courts to reach the underlying merits sooner than they otherwise would.¹²⁵ The supervisory power can also override standards of review, a more subtle

feature of judicial review, like applying a plain error standard but not requiring a showing of prejudice.¹²⁶

Second, courts use their supervisory authority to develop the underlying substance of the law. Supervisory decisions not only presage state constitutional decisions; they set an analytical foundation to help frame the underlying right or value. For example, over a series of decisions, Alaska’s Supreme Court used its supervisory power to sketch a variety of procedures to protect witnesses who are compelled to testify.¹²⁷ In the cases, the court balanced the state’s prosecutorial interests with the risk that compelled testimony may expose the witness to criminal liability. In a third case, the court held that a subsequently enacted statute providing a form of compelled testimony violated the state constitution’s Fifth Amendment analogue, reasoning it exceeded the prior boundaries set out by the court’s supervisory power.¹²⁸ The court “piece[d] together” its prior supervisory decisions to provide the “scope” of the state constitution’s right against self-incrimination.¹²⁹ In these cases, courts draw on the rules, frameworks, values, and policies developed under the supervisory power to, as Chief Judge Judith Kaye put it, “nourish” the state constitution.¹³⁰

Finally, the supervisory power can help supreme courts assert more control over how they decide an issue. Specifically, its highly flexible nature and lack of traditional limitations allow courts to resolve issues temporarily, until internal or external factors provide the basis for a more permanent resting place, like a constitutional decision, amendment, or statute. For example, in cases raising novel questions of federal constitutional rights, courts have recognized that the U.S. Supreme Court has not yet decided the issue and instead used their supervisory power to address the challenged conduct until the U.S. Supreme Court reaches it.¹³¹ In instances where legislation is pending or would be preferred, supervisory authority can act as a placeholder until a relevant statute or regulation is enacted.¹³²

This feature of the supervisory authority has an intersystemic aspect as well. The power can provide stability for state law in the face of federal doctrinal churn. For instance, when a line of U.S. Supreme Court case law is less than clear, state high courts may develop a variety of interpretations before the U.S. Supreme Court finally clarifies the underlying rules. That clarification may reveal that a state’s interpretation was wrong, requiring a change in the law on the books in that state.¹³³ In these instances, some courts have chosen to retain their interpretation but as a matter of their supervisory authority rather than the relevant provision of the U.S. Constitution.¹³⁴ Alternatively, where a state high court has lockstepped the state constitution and the U.S. Supreme Court has “repudiate[d]” the underlying federal rule, some state courts have chosen to resolve the issue temporarily under the supervisory power to decide at a later date whether they wish to retain the old rule under the state constitution or re-yoke it to the U.S. Supreme Court’s new one.¹³⁵

iii. Interbranch Engagement

Some state supreme courts rely on the supervisory power to facilitate another institutional responsibility—engaging with other branches. This includes both collaboration and resistance. In both circumstances, the supervisory power serves as a flexible tool for courts to combine the expertise and interests of each branch and to more easily navigate inevitable frictions.

When collaborating with other branches, courts often develop policies that affect both the judiciary and the state’s legal system writ large.¹³⁶ The supervisory power’s open-ended nature helpfully provides a way to adapt and implement the interests, expertise, and views of the branches to the situation.¹³⁷ For example, the Arkansas Supreme Court’s supervisory power was central to its collaboration with the other branches in revising the state’s criminal code.¹³⁸ It relied on the authority to enact a revised set of procedural rules based on input from a commission consisting of representatives from all three branches, the bar, academy, and activists.¹³⁹

Collaboration might include operationalizing a broad policy objective announced by another branch as well. For example, during the COVID-19 pandemic, New Jersey’s governor issued an executive order allowing certain prisoners to apply for early release in light of certain health risks.¹⁴⁰ Invoking its supervisory power to implement the policy, the court crafted a “framework” and expedited procedure that marshalled judicial resources to effectuate the order while balancing due process considerations.¹⁴¹

The power can also help courts navigate interbranch tension, especially when it implicates the courts themselves. As with examples of cooperation, the supervisory power’s flexibility enables courts to tailor context-specific rules. For example, in response to a series of decisions from executive agencies perceived as coercive to the court system, the Delaware Supreme Court relied on its supervisory authority to hold that executive agencies do not have jurisdiction over judicial branch labor disputes (unlike public employee unions in other branches).¹⁴² Following a gubernatorial veto of judicial salary increases some considered necessary, Illinois’s high court used its supervisory power to invalidate the executive action and set aside procedural defects to enforce a lower court’s order requiring an increase in appropriations.¹⁴³

iv. Oversight

Finally, all state supreme courts, through individual justices, the chief justice, or an administrative office, are responsible for administering the judicial branch.¹⁴⁴ Though this Article is focused on uses of the supervisory power beyond its quotidian administrative applications, some courts have taken notably expansive views of their oversight responsibilities and their judiciary’s overall workload that are worth considering.

For example, the Arkansas Supreme Court has relied on its supervisory power to appoint an “independent consultant” to audit and recommend solutions to address chronic backlog in lower court districts.¹⁴⁵ In response to a constitutional amendment providing California’s lower courts with “unlimited” habeas corpus jurisdiction, the California Supreme Court promulgated a filing procedure to avoid confusion stemming from overlapping jurisdiction that would ensure an efficient and “equitable” case flow.¹⁴⁶ While these examples may seem routine on their face, the courts’ explanations for their choices center “important considerations of public policy” and other normative values. In that sense, these brief examples illustrate additional ways state high courts use their supervisory power to operationalize notions of the general welfare within the proper administration of justice.

Complex litigation is another example where supreme courts rely on their supervisory power to manage systemwide workload and where choice and values can enter the decision. These uses of the power often resemble federal multidistrict litigation practice but are ad hoc and based purely on a supreme court’s discretionary evaluation of what is best in a particular situation for the judiciary, litigants, and public.¹⁴⁷

Here, too, supreme courts have used this oversight aspect of the supervisory power to achieve normative ends through the active management of such mass litigation. For example, at a time when Philadelphia’s trial courts had among the largest asbestos dockets in the country, the Pennsylvania Supreme Court used its supervisory power to consolidate almost 2,000 cases and order all pending matters to proceed immediately to a nonjury trial.¹⁴⁸ At the heart of the court’s decision was its emphasis on achieving “timely justice.”¹⁴⁹ Similarly, Colorado’s high court coordinated a spate of water law cases in a single trial court and promulgated an ad hoc procedure to resolve them as efficiently as possible.¹⁵⁰ Animating the court’s order was its recognition that it is an integral part of the state’s lawmaking apparatus and that the complex cases could frustrate its ability to contribute to state water policy by overloading judicial resources.¹⁵¹

Beyond control over courts and global workload, the oversight function of the supervisory power includes control over judges, too. This use of the supervisory power is distinct from formal disciplinary proceedings.¹⁵² Supreme courts rely on the power to ensure individual members of the judiciary are properly “administ[ering] justice” and comporting themselves with the high court’s conception of fairness and equality.¹⁵³ Thus, race-conscious jury assignments that violate notions of equality, wielding judicial power in a way that is “oppressive and improper,” and presiding over cases in ways that fail to meet the supreme court’s quality standards are the kinds of conduct supreme courts rein in with their supervisory power.¹⁵⁴

b. Non-adjudicative

As judges and commentators have long observed of the federal courts, they are “reactive” institutions that lack a “self-starter,” meaning the judicial power requires “someone outside of the judicial system” to initiate it.¹⁵⁵

To be sure, the U.S. Supreme Court can and does set its own agenda by signaling an appetite for certain kinds of cases to external actors, selecting cases that advance their interests, and defining the questions presented to help ensure particular outcomes.¹⁵⁶ These instances of judicial choice constitute a form of policymaking but nevertheless are still limited by the Court’s reactive design.¹⁵⁷ Indeed, as Martin Shapiro and Alec Stone Sweet put it, “litigants activate” the Court, which, in turn, defines the “parameters” for how it impacts law and policy.¹⁵⁸

Along these lines, state supreme courts operate very differently. Relevant to this Article, wielding their supervisory power is not necessarily contingent on a litigant invoking the judicial machinery. Rather, state supreme courts can and do proactively use their supervisory power to craft policy, contribute to state governance, engage with other branches, protect their institutional prerogatives, and promote their own conception of the general welfare. It is this proactive nature of the supervisory power that enables state supreme courts to serve as more than a passive policymaker, as with their federal counterpart, but instead an active agent in state governance.¹⁵⁹

i. Policymaking for the General Welfare

In addition to the reactive applications above, supreme courts can and do use their supervisory authority as a proactive policymaking mechanism. Specifically, it serves as a source of power that enables courts to advance particular normative ideals and contribute to a state’s general welfare based on its evaluation of what is necessary. Consider some recent examples.

Fines and fees. The supervisory power played an important role in reducing or eliminating the imposition of fees and fines. While the issue is not new, the pernicious effects and racial disparities caused by over-reliance on such penalties and obligations attracted renewed attention in 2014 after a police officer killed Michael Brown in Ferguson, Missouri.¹⁶⁰ The U.S. Department of Justice’s subsequent investigation and report drew a national spotlight on the ways in which some courts and local governments use fees and fines as revenue generators.¹⁶¹ In response to evidence showing the race and class implications of such policies, several state supreme courts used their supervisory powers to rethink the role of these penalties, with a more just judiciary serving as their North Star.¹⁶²

For example, after reviewing a report from a committee tasked with studying the impacts of court fees, the New Jersey Supreme Court invoked its supervisory authority to dismiss nearly 900,000 outstanding municipal cases and over $7 million in fines.¹⁶³ It also narrowed the circumstances in which judges can impose fees and capped permissible amounts.¹⁶⁴ The court’s actions were driven by its conception of a just court system: one that does not allow local governments to use the judiciary as a means of extraction.¹⁶⁵ New Jersey was not alone—high courts in Illinois, Kentucky, Michigan, and Virginia, used their supervisory power to make similar changes to their respective court systems.¹⁶⁶

Housing moratoria. Another recent example arose during the COVID-19 pandemic, which, in addition to the public health crisis, prompted significant social and economic instability nationwide.¹⁶⁷ Among the myriad effects of these shocks was housing security. Indeed, a policy challenge that government at all levels faced during the pandemic was how to balance the public health impacts of mass displacement with the economic considerations flowing from the significant job and wage losses across the country.¹⁶⁸ During this period, state actors enacted a “largely unprecedented” set of housing policies to try and manage the crisis.¹⁶⁹ State supreme courts, it turns out, played a proactive role, using their supervisory authority to initiate and shape these policies.¹⁷⁰

The most common form of housing policy interventions were eviction moratoria, where supreme courts would severely limit, or prohibit entirely, court-ordered evictions. As with most state-level policy responses, interventions varied. Court-imposed moratoria differed in duration, scope, and reach.¹⁷¹ Courts also framed the underlying issue differently in their orders—a feature of the supervisory power. For some, their order defined the issue as eviction itself, whereas for others, courts saw themselves as wielding their supervisory power to help limit larger social issues, like homelessness and the continued spread of COVID-19.¹⁷² For example, the South Carolina Supreme Court suspended all pending and future evictions for a period of months in recognition of the “difficulties,” like “housing insecurity and homelessness,” the pandemic would cause “individuals.”¹⁷³ Tennessee’s high court prohibited all judiciary personnel from “tak[ing] any action to effectuate an eviction . . . based upon the failure to make a rent, loan, or other

similar payment,” due to “the increasing economic issues caused by this pandemic.”¹⁷⁴

In addition to moratoria, supreme courts also crafted policies and procedures that modified or supplemented their existing eviction processes. Supreme courts in Michigan and New Jersey, for instance, instituted diversionary policies requiring landlords and tenants to attempt settlement before an eviction action could be filed.¹⁷⁵ Notably, the courts here were not reactively deciding disputes between parties, but were instead proactively issuing policies to try and limit the perceived social and economic effects of a crisis affecting the state.¹⁷⁶

Problem-solving courts. The instances above are more recent examples of the ways through which state supreme courts have affirmatively used their supervisory power to contribute to state governance. Another use along these lines, perhaps with a longer pedigree, is the creation of problem-solving courts.¹⁷⁷ Supreme courts use their supervisory authority to create specialized dockets, procedures to manage them, and groups of judges to

hear the cases, all within the existing judicial infrastructure.¹⁷⁸ These choices are made “outside the crucible of litigation.”¹⁷⁹

Like the examples above, specialty courts are another way supreme courts are addressing issues they perceive as important and using their supervisory power to fashion responses.¹⁸⁰ Indeed, specialty courts originated as a judicial policy solution to increasing rates of recidivism among drug offenders and spikes in incarceration rates from a turn to tough-on-crime politics. As a former Chief Judge of New York’s judiciary explained, these courts enable judiciaries to affect a “quiet revolution” to give victims and communities “enhanced safety and a greater voice” and a way for the judiciary to meaningfully contribute to society without “simply proliferating legal process.”¹⁸¹ Supreme courts across the country have created and manage specialty courts that touch on a range of issues, from homelessness to guns, to mental health and opioids. It is not the existence of these courts that makes them notable, but the discretion available to state supreme courts to conceptualize and experiment with solutions to address issues they foresee as necessitating interventions to benefit the state’s health, safety, and general welfare.¹⁸²

ii. Interbranch Engagement

In addition to serving as a source of affirmative policymaking, the supervisory power provides a way for supreme courts to engage with other actors outside of litigation. Here, it provides a tool for courts to advance desirable policies and pursue institutional interests.

A common application along these lines was discussed above—courts craft ad hoc rules and procedures that influence the investigative and prosecutorial discretion of state executive branch officers.¹⁸³ But as we know, state courts operate in a federal system, and so we should expect interactions with the federal government as well. Indeed, some courts have

relied on their supervisory power to affect the scope of federal executive authority.

For example, during the Trump administration, U.S. Immigration and Customs Enforcement (“ICE”) officers significantly increased their presence in state courthouses, arresting people coming to court as defendants or witnesses in cases unrelated to immigration.¹⁸⁴ Relevant here, ICE typically relies on “administrative” warrants, which are not reviewed by a neutral party to determine if it is based on probable cause.¹⁸⁵ Contemporaneous studies of this dramatic change in federal policy showed the increased threat of immigration enforcement had a chilling effect on state legal systems, preventing “immigrants from reporting crimes and participating in court proceedings.”¹⁸⁶

Several state supreme courts, particularly in blue states, responded by enacting new policies pursuant to their oversight of their state’s court system. For example, the Oregon Supreme Court promulgated a rule that required a heightened showing from ICE in order to make an arrest within or around Oregon courthouses. The high courts in Connecticut, New York, and Washington enacted similar policies for their respective court systems.¹⁸⁷

Moving beyond the executive branch, high courts can and do use their supervisory authority as a defense against perceived incursions from the legislature or to assert their prerogatives over the coordinate branch.

Consider letters of address. These are formal letters issued by state high courts to coordinate branches that provide legal analysis of pending legislation or possible executive action.¹⁸⁸ In some sense, they are like advisory opinions. However, they differ in at least one important respect—advisory opinions typically require a request from another branch, whereas letters of address are issued sua sponte. For example, the Michigan Supreme Court has sent several letters to coordinate branches, as far back as the nineteenth century, noting that pending or recently enacted legislation was unlawful.¹⁸⁹ Pennsylvania’s Supreme Court issued a similar letter intended to “mak[e] [their] views known” that the state constitution prohibited application of state public records laws to supreme court rulemaking procedures.¹⁹⁰ Maine’s Supreme Judicial Court provided advice that pending legislation purporting to require cameras in courtrooms was unlawful.¹⁹¹ And Massachusetts’s Supreme Judicial Court issued guidance sua sponte concluding various statutes reclassifying certain members of judiciary staff as part of the executive branch were constitutional.¹⁹²

These examples illustrate ways supreme courts can use their supervisory authority to affirmatively engage with other branches, but the key insight is that the supervisory power enhances their ability to act affirmatively. This feature has two notable benefits. It increases their independence, since courts need not wait for a proper case challenging a coordinate branch’s actions that threatens judicial prerogatives. And it can minimize the “risk [of] creating and prolonging unnecessary tension between [the] branches of government.”¹⁹³

But it is the supervisory power that creates opportunities for supreme courts to consider and weigh these factors against their institutional interests and possibly act free from the confines of litigation.¹⁹⁴

Attributes

The prior Section explored various ways in which state courts rely on their supervisory power. Turning from the how to the what, the discussion below examines the nature of the supervisory power by reviewing its key attributes.

a. Freestanding

The supervisory power functions as a freestanding source of judicial authority.¹⁹⁵ It is distinct from conventional aspects of state judicial power, like judicial review and common lawmaking, as well as more distinctive manifestations, like attorney discipline. This has implications on the scope and availability of a court’s authority.

First, because supervision spans a court’s adjudicative and non-adjudicative authority, the power is not limited by a supreme court’s jurisdiction.¹⁹⁶ In other words, when a court’s administrative or operational interests are implicated, their power is not constrained by the various jurisdictional or procedural defects that might otherwise foreclose review.¹⁹⁷ Second, because the power is freestanding and constitutionally based, it means the supervisory power cannot be narrowed by statute.¹⁹⁸

b. Lower Showing Needed

In some states, supreme courts have has conditioned supervisory relief on a certain showing of prejudice, not unlike ordinary judicial review.¹⁹⁹ However, because it is a separate power, some courts have required litigants to make a showing to warrant relief that is correspondingly different from that needed to prevail on a constitutional or statutory claim.²⁰⁰ When invoking their supervisory power, the interests implicated go beyond just the rights of the individual litigant but encompass the court system’s prerogatives, as well.²⁰¹ Additionally, unlike a constitutional claim, courts often use the supervisory power to modify or create new procedures or policies rather than invalidate statutes, further altering the institutional interests at stake in litigation.²⁰²

c. Discretionary

The power is also entirely discretionary.²⁰³ To be sure, some courts have devised standards that purport to cabin its availability, but such decisions are purely a product of choice. For example, they ask whether the underlying issue presents an “extraordinary circumstance,”²⁰⁴ is “sufficiently compelling,”²⁰⁵ or “serves the interests of judicial economy.”²⁰⁶ Others lack a standard along these lines but instead describe use of the power as rare or infrequent to suggest there’s a presumption against its use.²⁰⁷ But these standards are judicially imposed and courts rarely explain why a given case rises or fails to meet these thresholds.²⁰⁸ Additionally, some courts have significantly increased their use of the supervisory power, notwithstanding

continued adherence to such presumptions, as in Connecticut, Illinois, and Montana.²⁰⁹

More often, courts decline to provide any kind of standard governing their supervisory power or explicitly refer to it as a choice.²¹⁰ The structural guardrails that ordinarily cabin discretion are similarly absent. Considerations like text, precedent, and parties’ arguments that generally impose some guidance—even if minimal—on courts in the adjudicative context are not implicated.²¹¹ The discretionary nature of the power is especially acute in the non-adjudicative context, as courts need not wait for a party or litigant to initiate it, thus removing one of the strongest limits on judicial power.²¹²

d. Flexible

In addition to its discretionary nature, a hallmark of the supervisory power is its flexibility.²¹³ This manifests in two respects. First, rather than a fixed set of applications or possible contexts in which the power might apply, courts typically see it as open ended. The supervisory power is primarily a tool that enables the supreme court to address whatever needs arise in its responsibilities overseeing the judiciary. Those needs often result from unpredictable external factors, like a once-in-a-generation pandemic or a national recession.²¹⁴ Thus, the power must necessarily be sufficiently adaptable. Relatedly, the supervisory authority maintains the integrity of a court system and ensures the proper administration of justice. This objective similarly requires a certain level of flexibility, as injustice can come in many forms.²¹⁵

Second, the underlying doctrine generated by the supervisory power is supple.²¹⁶ Conventional constitutional analysis is generally quite rigid; the permanence of constitutional rules, additional factors like precedent and methodological commitments, and the specter of U.S. Supreme Court review can lead to quite wooden forms of decision-making.²¹⁷ Supervisory decisions, in contrast, are explicitly understood by state high courts as closer to generic understandings of policymaking than mechanical application of existing law to fact.²¹⁸ They explicitly consist of interest balancing and weighing various considerations, some of which may be absent from the underlying case.²¹⁹ Further, these decisions are often—though not always²²⁰—applied prospectively, which further blunts the force of precedent, minimizes the cost of overruling, and offers courts the lawmaking latitude “comparable to that of legislatures.”²²¹

However, despite its highly flexible nature, the supervisory power is not without bite. Though the U.S. Supreme Court has never invalidated a statute under its supervisory power,²²² such a result is not uncommon among state supreme courts.²²³ Additionally, not only have state high courts narrowed the discretion of executive and legislative actors; they have also forced state actors to take discretionary action, like ordering the legislature to appropriate a specific amount of funding.²²⁴ As such, the open-ended nature of the power does not necessarily dilute its potency.

e. Normative in Nature

Orders and decisions issued under a supreme court’s supervisory authority are explicitly subjective in their content. To be sure, this is not to say they are arbitrary. Quite the opposite—decisions are often highly evaluative of the underlying needs of the judiciary, the state’s larger legal system, and, in some instances, the population writ large. Courts may draw on various sources of facts, policy, science, and so on, to inform their decision.²²⁵ But paired with its highly discretionary nature and few formal constraints, it is in this sense that the supervisory power is predominantly a means for courts to operationalize normative or subjective views of the state’s law and policy. The underlying premise of decision-making pursuant to the supervisory power is not what a prior case, statute, or other sources provide to address a given issue. Instead, courts start from a place that’s closer to first principles and ask what they “should” do.²²⁶

***

The discussion thus far has shown that the state supervisory power came as a result of broader state-level governmental reforms that elevated the political status of state judiciaries, expanded their role in governance, and enhanced their power. This Part has demonstrated that the power is a discretionary, flexible, standalone form of judicial authority that increases the capacity of courts and overrides many of the traditional limits on their power. Courts have used their supervisory power beyond the day-to-day management of the judiciary to enhance remedies, strengthen rights, and navigate interbranch relations.

To expand our understanding of the state supervisory power, we should also consider its federal counterpart. That comparison shows that the state supervisory authority is more expansive, potent, and legitimate. It raises important normative implications for how we evaluate this aspect of state

judicial practice and challenges some institutional assumptions concerning state high courts. I elaborate on these implications in Part IV.

B. U.S. Supreme Court Supervisory Power

Similar to state courts, the U.S. Supreme Court’s supervisory authority refers to powers that enable it to oversee the federal judiciary’s operations “in order to preserve the integrity of judicial processes.”²²⁷ However, as shown below, the federal high court’s supervisory power is narrower, significantly more limited, and generally considered an illegitimate feature of federal practice. Thus, the key takeaway from this brief comparison is that while state and federal supervisory powers share common elements, the former is a distinctive feature of state court practice.

Comparison

Looking at the Court’s use of the power as a whole, it largely falls along two tracks—ad hoc rulemaking and remedial enhancement.²²⁸

Cases fall along the first track when relevant procedural, statutory, or constitutional sources come up short.²²⁹ When the Court perceives an omission in relevant statutes or rules of procedure that affects the “quality” or proper functioning of federal litigation, it uses its supervisory power to address it.²³⁰ On the second track, the Court uses its supervisory power as an auxiliary form of remedial authority to execute statutory and constitutional policies. In these cases, the Court perceives that the existing enforcement mechanism fails to sufficiently implement a statute’s underlying objective or constitutional right’s core values, then uses the supervisory power to span the remedial gap. These features of the Court’s supervisory power are similar to the applications discussed in Part II.A—state high courts use their own authority along the same lines.²³¹

The federal supervisory power is also flexible, consisting largely of balancing by the justices. Some scholars have described it as “procedural common law” or “procedural lawmaking.”²³² Others have referred to supervisory decisions as “essentially legislative” in that the Court’s reasoning is more akin to policymaking than legal analysis.²³³ This, too, parallels the state supervisory power.²³⁴

Despite these similarities, there are significant differences between state and federal supervisory powers. Notably, the Court’s own power is limited to adjudication, unlike its state counterparts. Further, when it crafts ad hoc rules, the protections they afford litigants rarely exceed existing Constitutional limits—i.e., federal supervisory rules seldom offer more protection than the Constitution.²³⁵ And the Court has never invalidated a statute with its supervisory power. In these ways, it is fair to say that the U.S. Supreme Court’s supervisory authority is narrower and less potent than its state-level alternative.

Judicial Administration and Constitutional Structure

The differences between the state and federal powers can primarily be explained by structural features of the state and Federal Constitutions and their respective judiciaries.

As discussed in Part I, state court systems evolved into a unified model, placing the supreme court as the administrative head of the courts and centralizing in the high court operational powers and responsibilities. The federal courts followed a different path. Federal court reformers, like William Taft, pursued a decentralized design. While the Supreme Court is the highest court of the judiciary, administrative and operational responsibility is diffused across a vast network of judicial agencies.²³⁶

For example, the Judicial Panel on Multidistrict Litigation both consolidates complex civil cases in a single trial court for pretrial proceedings and fashions rules that govern relevant procedures.²³⁷ The Administrative Office for the federal courts oversees the judiciary’s pretrial supervision and probation services for criminal defendants.²³⁸ The Judicial Conference serves as the courts’ primary policymaking arm, developing policies to implement the myriad statutes governing the federal courts, as well as advising Congress on the federal judiciary’s needs and interests.²³⁹ Together, they create a constellation of supervision. Thus, whereas supreme courts administer state judiciaries, the federal court system is administered by the federal judiciary.²⁴⁰

Further, unlike state courts, the administrative power of the federal courts is almost entirely statutory.²⁴¹ This structural distinction raises institutional considerations as to the scope of the power courts wield and the source of the prerogatives behind it. Since the various judicial agencies are creatures of statute, many of the first-order policy choices are made by Congress rather than the Supreme Court.²⁴² Even where Congress delegates broad discretion to the judiciary, it is wielded by a vast bureaucratic apparatus, rather than a single decision-making institution.²⁴³ To be sure, the Chief Justice wields a significant amount of influence over this system, but the underlying structure is sufficiently decentralized as to allow for inter-agency conflicts and even for agencies to countermand the Chief Justice’s own prerogatives.²⁴⁴ In these ways, the structural distinctions between how state and federal courts are administered plays a substantial part in the scope of the supervisory authority available to the respective high courts.

Constitutional structure similarly contributes to the differences between the state and federal supervisory powers. The source of the federal supervisory power is contested in the literature,²⁴⁵ but the federal government can only exercise those powers provided for by the Constitution, and scholars generally agree, whatever its source, that Article III significantly limits its scope.²⁴⁶ Broad uses of the supervisory power is said to exceed these limits by providing the justices with a “freestanding” source of policymaking authority that enables them to resolve disputes based on normative assessments of justice and fairness, rather than a statute or constitutional provision. In other words, sketching public policy, crafting the suite of remedies available for violations, and determining the methods of enforcement are all issues that fall to nonjudicial branches. State constitutions, in contrast, limit and distribute powers rather than grant them, and as discussed in Part I, modern government reform allocated greater policymaking responsibilities to supreme courts and created the supervisory power as one of their primary tools to do so.

In sum, the U.S. Supreme Court has a supervisory power that shares several features with its state counterpart. It is flexible and has largely served as a source of policymaking power to craft ad hoc procedural rules and enhance remedies. However, the two differ meaningfully. The federal power is both rarely used and narrower in scope.²⁴⁷ It is limited to adjudication, rarely afforded parties the level of relief seen in state courts, and never served as the basis to invalidate a statute. These distinctions are largely products of the fact that state constitutions generally allocate more administrative policymaking power to state courts than their federal counterpart and that power is centralized in state supreme courts whereas in the federal judiciary it’s diffused across a host of actors.

III. Boundaries and Limits

The discussion thus far has described the supervisory power of state supreme courts and connected this feature of state court practice to the institutional development of modern state judicial systems. That analysis defends the broader uses of the power reviewed in Part II as both institutionally and constitutionally grounded. But this Article’s thesis is a qualified rather than wholesale defense of the practice. This Part thus considers the supervisory power’s limitations. As Part II showed, the supervisory authority’s applications are vast and the power itself quite discretionary. To account for this breadth and ambiguity, this Part proposes a model it terms the zone of supervision to sketch the supervisory power’s boundaries. It then discusses how state constitutional structure provides tools to sanction courts when they cross them.

A. Boundaries

This Section sketches the supervisory power’s metes and bounds through a model that both explains prior uses of the power and helps frame how courts might use it in the future.

The model relies on two variables drawn from the descriptive and institutional accounts above: the legalness of the underlying issue and its proximity to judiciary interests. Together, the variables create a two-dimensional space this Article refers to as the zone of supervision, which represents the idealized conception of the supervisory power. This perimeter demarcates the scope of a court’s supervisory power. Uses that fall outside the scope should be viewed with skepticism. Section III.B explores the various sanctions available when a court does wield its power beyond its zone of supervision. But first, this Section unpacks the model by exploring its two variables.

Legalness

Legalness here refers to the nature of the underlying issue or intended application.²⁴⁸ Based on this attribute, supreme courts may consider the supervisory power to be appropriate or ill-suited to addressing the question. In this context, legalness falls along a spectrum. The spectrum turns on the informal nature of the supervisory power and the fact that it overlaps with other forms of judicial authority. On the one end are applications of the power that are insufficiently legal or too policy-like. At the other end are applications that are too legal.

State high courts consider applications of the supervisory power as too policy-like when they implicate a multitude of competing interests and lack a basis to weigh them, or have multiple potential resolutions without clear criterion to evaluate them. For example, when asked to impose a requirement that jurors in a criminal proceeding identify their race before voir dire, the Connecticut Supreme Court declined, explaining that the central issue—the interaction between the ways jurors self-identify with the perceptions of prosecutors—was too complex.²⁴⁹ Iowa’s high court similarly refused to craft a rule under its supervisory power to require certain probation proceedings precede related criminal trials, explaining that such a rule implicates sufficiently complex questions of public safety best left to the legislature.²⁵⁰

At the other end of the spectrum are applications that are too “legal,” meaning courts decline to exercise their supervisory power because the issue calls for a more formal or durable source of power.²⁵¹ For example, North Carolina’s supreme court declined to use the supervisory power to reach the merits of an as-applied challenge to a statute in a consolidated case because it was appealed before any record development in the individual actions.²⁵² And Kansas’s high court refused to use its supervisory power to issue ad hoc relief, reasoning the precise remedy sought already existed in a statute.²⁵³

Proximity to the Judiciary

The supervisory authority’s purpose as a power supreme courts wield to oversee and manage the judicial branch serves as a boundary as well. Application of the supervisory power is sensitive to its relative proximity to the judiciary and its responsibility overseeing a state’s justice system.²⁵⁴ That is not to say the supervisory power is limited to contexts that only concern the judiciary, but it is to suggest that there must be a sufficient nexus between the policy or relief sought pursuant to the supervisory authority and judiciary operations and its interests.²⁵⁵

On one end is high proximity to the judiciary. While comparatively rare, there may be some contexts where supreme courts might see their intervention as unwarranted or inappropriate. This arises in areas where lower court discretion is typically expected, like decisions related to appointing counsel, courtroom management, contempt orders, and so on.²⁵⁶ But for the most part, situations with a significant nexus to judicial operations or interests will warrant use of the supervisory power.²⁵⁷

On the other end are issues that are too remote from the judiciary’s interests or administration. As the relationship between the judiciary’s interest in the proper administration of justice and responsibility for operations and the sought-after relief grows more attenuated, supervisory power is considered less appropriate. For example, crafting evidentiary rules or rules of criminal procedure is closer to the judiciary than announcing a rule under the supervisory power that would directly control law enforcement conduct.²⁵⁸ And sketching rules concerning public access to internal records for a component of the judiciary differs materially from an agency that is constitutionally separate.²⁵⁹

As noted, both variables—legalness and proximity to the judiciary—exist on spectrums. Bringing them together, we can see a sweet spot where the supervisory power is best suited or most appropriate. This Article terms the area the zone of supervision. It is in this space that courts should wield their supervisory power. Applications that fall outside its contours should presumptively be viewed as overreach. Figure 2 below serves as an illustration.

Two points of clarification are warranted. First, this model is not based on fixed points. In fact, the variables are contingent. As discussed in Part II, the power is highly discretionary and flexible. This adaptability allows courts to frame applications of the power in different ways that may place it within or beyond the zone of supervision.

Figure 2. Zone of Supervision

For example, consider again the pandemic eviction moratoria. Suppose two courts issue moratoria that are identical in every way except the reasons for them. Court A says it is invoking its supervisory power because it feels that the potential harms to unhoused people during a historic pandemic outweigh the economic harms to landlords. Court B explains that due to social distancing requirements, the number of cases the judiciary can process is significantly reduced and that it must prioritize criminal cases, custody disputes, and domestic violence hearings over eviction proceedings due to speedy trial requirements and liberty interests. The outcomes under either framing are essentially the same—no eviction proceedings—but one might reasonably think Court B’s moratorium is closer to the heart of its zone of supervision.

These choices reflect a linkage between how courts frame applications of the power and their understanding of the specific contours of their zone of supervision. To a certain extent, this is to be expected, as the contextual

nature of a given supreme court’s power is well documented in the literature.²⁶⁰ Indeed, interstate variation is not uncommon.

For example, consider how state high courts divided over a rule requiring law enforcement to record custodial interviews. Several courts considered the issue under state and Federal Constitutions as well as the supervisory power and split on the question.

The high courts in Minnesota, New Hampshire, New Jersey, and Wisconsin, for instance, understood the question to be well within the bounds of their supervisory powers’ zone of supervision, as it implicated their duty “to take all appropriate measures to ensure the fair and proper administration of a criminal trial.”²⁶¹ For the supreme courts of Connecticut, Kentucky, Maryland, and Vermont, though, the issue neither raised a constitutional question nor was it appropriate for supervisory relief and was thus best suited for the legislature.²⁶² There are other examples,²⁶³ and they

each illustrate how the variables within the model sketched above are not fixed across states but, due to the nature of the doctrine, are quite fluid.

Second, when an application of the supervisory power falls outside of the zone of supervision, it does not mean such a use of judicial power is inappropriate or illegitimate. Developing a rule or framework may be well within the court’s power—but just not its supervisory authority. For example, a court may determine requiring custodial interrogation of juvenile suspects is outside its zone of supervision, but it is required by the state constitution’s due process clause or a provision of a relevant statute.²⁶⁴ The supervisory authority is a standalone power and can thus supplement other forms of judicial power as well as serve as an alternative basis for a court to act.

Limits

A court’s zone of supervision is subject to both internal and external factors that police its boundaries. But both factors implicate the state’s political environment.

Internally, as multimember bodies, a supreme court’s composition is crucial to how and when it wields power.²⁶⁵ The supervisory authority is no exception. Thus, changes in a court’s composition can influence whether a given application of the supervisory power falls within the zone of supervision or should instead be seen as exceeding authority. For example, in the early 2000s, the Michigan Supreme Court experienced “deep divisions” along these lines.²⁶⁶ After decades construing the supervisory power broadly,²⁶⁷ a new majority of the court took a narrower view of its zone of supervision.²⁶⁸

While these internal factors can limit the supervisory power, the primary checks are external. Indeed, state constitutions “prioritize[] external checks on government more than internal checks.”²⁶⁹ Following the “first wave” of state constitutions at the founding, subsequent charters from California to Connecticut emphasized control of government through novel structural innovations, like single-subject rules, statewide gubernatorial elections (versus legislative selection), and the creation of referendum, initiative, and recall processes.²⁷⁰ It is these unique structural features that offer legal and political tools to constrain government authority.²⁷¹ Thus, the most consequential check on state judicial power is the state’s political processes, as defined by a state’s particular constitutional structure, norms, and history.²⁷²

Consider some of the relevant structural features common to state constitutions. The vast majority of justices stand for some kind of election. And even in the states that rely on a different method of selection, those mechanisms are not distorted by structures like the Electoral College. These features offer some level of majoritarian control over who is wielding judicial power. Further, with one exception, all state constitutions impose mandatory retirement, term limits, or both, which help facilitate churn as to court personnel. And the meaningful availability of popular initiative and amendment can similarly serve as a form of judicial sanction.²⁷³ Taken together, these and other structural considerations play, as Laura Langer has shown, “defin[ing]” roles as to the contours of a supreme court’s power.²⁷⁴

The coordinate branches similarly channel a state’s politics to influence the shape of a court’s power and what judges consider overreach or lack of compliance. As Meghan Leonard has observed, the coordinate branches of state government “have increased ability to fight back” against state supreme courts, relative to their federal counterparts.²⁷⁵

Both branches have constitutional and political tools that can narrow and check courts. In state’s that rely on executive appointment, for instance, governors have used this authority to reconfigure courts they think of as activist, a tack Govenor Chris Christie attempted in New Jersey.²⁷⁶ Executives have also used their fiscal powers to slash court budgets or offer lower court judges raises in exchange for support of measures that check supreme court power.²⁷⁷ As leaders with a statewide base, governors have also successfully galvanized popular support via direct democracy to bypass the legislature and override or countermand the courts.²⁷⁸

State constitutional structure and politics similarly afford legislatures several tools to meaningfully check judicial power. In the states where legislatures play a role in reconfirming or retaining justices, Thomas Gray has suggested the availability of such a sanction can and does chill potential abuses of judicial power.²⁷⁹ Legislatures can also use their impeachment power as a way to threaten or check judicial overreach.²⁸⁰ Similarly, there is a growing literature exploring the effects of court-curbing legislation at the state level that shows it can limit court power through direct (modifying substantive or procedural features) and indirect (galvanizing public support against the court) means.²⁸¹

State constitutions also provide the possibility of constitutional amendment, which can check judicial power and modify its undesirable applications. Studies of the constraining role of such measures suggest that using amendments to keep statutory and constitutional texts brief and detailed through frequent revision can “limit . . . the judiciary’s capacity to shape public policy” by narrowing their interpretive discretion and “minimiz[ing] the need for ongoing judicial determinations in the development of evolving public policies.”²⁸²

As a result of many of these structural features, most state high courts operate in closer proximity to their state’s political thicket than their federal counterparts.²⁸³ As discussed in Part I, this was an intentional design choice as part of court unification efforts. That said, not all courts and chief justices are equally adept at the judicial statesmanship aspect of their jobs.²⁸⁴ In this way, a court’s political savvy can (perhaps subtly) influence the boundaries of a court’s power and thus its zone of supervision as well.²⁸⁵

In sum, the distinctive vision for government that elevated supreme courts to truly coordinate branches and produced the supervisory power was also responsible for the constitutional features that limit it. These structural considerations produce internal and external political factors that can genuinely sanction and check court power. Indeed, the state public law literature has long recognized state courts are subject to political forces to a degree “unknown in the federal system.”²⁸⁶ The accumulation of these elements produces a governance structure capable of “absorb[ing]” broad applications of judicial power “much more constructively than the federal system.”²⁸⁷

With these boundaries and limits in mind, the next Part considers what to make of the supervisory power, as well as its broader implications.

IV. Implications

During the nineteenth and twentieth centuries, states from Alaska to Maine revised and redefined the structure of their governments through a flurry of constitutional conventions and amendments.²⁸⁸ Among other things, these changes elevated state judiciaries to equal status with other branches, made them more independent vis-à-vis the other branches, reconceptualized the role of state high courts by expanding their responsibilities, made them more accountable to the public, and, importantly, deliberately increased their power.²⁸⁹

The increase in power and political status gave high courts more tools to control their operations and advance their interests. The supervisory power is one such tool and, as Part II shows, courts have used it beyond its routine administrative applications to make and shape policy across a range of contexts. This policymaking dimension of the supervisory power implicates a host of theoretical and normative questions.

This Part works through the major threads of those analyses. Conceptually, this Article’s account of the supervisory power suggests a more active role for courts within the state policymaking apparatus in which they operate as equal partners with the other branches to advance the state’s general welfare.²⁹⁰ The supervisory power provides high courts with a more precise and flexible tool to contribute to a state’s ongoing governance project. To be sure, this account of a supreme court’s role raises normative questions related to the legitimacy of judicial policymaking. While a comprehensive theory of interbranch relations is outside the scope of this Article, Part IV.B engages with some of the primary critiques of judicial lawmaking. In brief, the institutional assumptions that animate these important arguments do not map so easily onto the separation-of-powers principles at the heart of state constitutions, nor the institutional assumptions that underlie how state judicial power is allocated.

A. Theoretical Implications

At a basic level, the supervisory power provides an additional tool for supreme courts to actively participate in state governance, within adjudication and outside of it. While the power can perform that function across a range of applications, its capacity to provide signaling, facilitating, and coordinating functions is especially important.²⁹¹

As a signaling device, supreme courts can call on the other branches to take action or they can share their perspectives on the underlying legal or policy issues outside of the strictures of ordinary constitutional litigation. For example, by enhancing constitutional values via procedural rules,²⁹² courts can share concerns regarding law enforcement tactics without barring the behavior entirely as an “unreasonable search” or “cruel and unusual punishment.” Similarly, an area of law or policy might benefit from the unique tools and institutional capabilities of the legislature, but various exigencies or other factors may necessitate a temporary solution. Here, too, courts can signal the policy gap for the legislature and offer an initial solution that reflects the judiciary’s perspective and expertise.²⁹³

The supervisory power similarly enables courts to operationalize and facilitate policies crafted by other branches. The decision by New Jersey’s high court to fashion a framework implementing the governor’s prisoner release policy during the pandemic is illustrative.²⁹⁴ There, and in similar examples, high courts invoke the supervisory power to effectuate the policy choices other branches have codified.²⁹⁵

Supreme courts can also coordinate actions between and among the branches towards effective governance. Consider again the Arkansas Supreme Court’s decision to bring the branches together to redraft the state’s criminal code from the ground up, or consider the California Supreme Court’s Collaboration on Mental Health Issues that resulted in related legislation.²⁹⁶ High courts across the country have similarly relied on their supervisory power to engage the other branches and channel their collective roles towards a specific policy goal.²⁹⁷ These examples demonstrate how the supervisory power enables courts to help harness the state’s full policy capacity towards a shared objective, or at least provide a venue to align on what those shared objectives are.²⁹⁸

These features illustrate some of the ways in which the supervisory authority empowers courts to contribute to state governance by engaging with other branches. Part II illustrated how supreme courts can make policy directly, in adjudication and beyond it. Together, we see how the supervisory power expands a supreme court’s policymaking capacity beyond the binary means afforded by judicial review. These applications of the supervisory power highlight a distinctive role for high courts in state governance, thus raising broader implications for allocation of powers and interbranch dynamics.

Some recent work on state separation-of-powers principles suggests that a core commitment at the heart of state constitutions is effective government. Scholarly accounts have observed that state constitutional structure favors practical over theoretical conceptions of institutional relations.²⁹⁹ John Devlin, for instance, has argued that the distinctively mixed design of state government also suggests state constitutional structure prioritizes pragmatism and practice over political theory.³⁰⁰ This work rejects generic notions of government structure and institutional assumptions based on the Federal Constitution. Instead, scholars have elaborated on the significance of the unique structural arrangements and deliberate design choices in state charters.

This work frames state interbranch relations almost exclusively around conflict and contestation.³⁰¹ But as Jonathan Marshfield has shown, a Madisonian theory of separation of powers finds little purchase in state constitutions.³⁰² In other words, the notion that “ambition can be made to counteract ambition” between the branches is not the organizing principle behind state institutional structure. Rather, Dan Rodriguez has suggested that the core commitment that animated modern state constitutional development is good government.³⁰³ People prioritized a structural regime that is “pragmatic” and can provide for their general welfare.³⁰⁴ Part I explored this reorientation in the specific context of court reform—it was a catalyst for the

supervisory power—but Rodriguez shows it applies across the entire constitutional structure.

Developing conceptions of interbranch relations that prioritize conflict or minimize collaboration leaves this core aspect of state constitutional structure undertheorized. To be sure, friction and “showdowns” are inevitable (and perhaps desirable).³⁰⁵ But developing conceptions of interbranch relations that focus on contestation limits the explanatory value of such theories and points towards a parochial conception of state constitutional structure.³⁰⁶

This Article’s account of the supervisory power helps widen our lens accordingly and lays the groundwork for a more fulsome analysis of interbranch relations that elevates the role of cooperation.³⁰⁷ It demonstrates some of the ways the supervisory power can serve as a tool for courts to contribute to the governance process through expanded policymaking,³⁰⁸ filtered through the judiciary’s institutional expertise and distinctive political incentives (i.e., their zone of supervision).³⁰⁹

B. Normative Implications

With this conceptual analysis in mind, we might ask then what we should make of the supervisory power. As discussed above, and noted throughout the Article, the supervisory power implicates foundational questions of state judicial power and role. Absent a comprehensive theory of state courts, though, we cannot fully evaluate the supervisory power’s normative implications. Thus, in working through the primary themes of that analysis, this Section’s discussion is accordingly tentative and brief.

We might fairly describe the supervisory authority as a judicial policymaking tool. As noted in Part II, the power plays a direct (e.g., ad hoc procedural rulemaking) and indirect (e.g., reaching a constitutional issue no party raised) part in enhancing a court’s capacity to make and influence state policy. To evaluate such aspects of judicial power, the courts’ literature often inquires as to whether courts are wielding the proper power and whether they are using it appropriately.³¹⁰ This is a vast literature that spans disciplines from law to social science, but two variables common to analysis along these lines are legitimacy and a court’s proper role.

It is fairly uncontroversial to say that American constitutional governance entails some level of judicial policymaking.³¹¹ What is typically contested is how much is too much. Robert Kagan famously offered an institutional frame he termed “adversarial legalism” to help critique what he saw as an overreliance on courts as policymakers.³¹² The thrust of Kagan’s nuanced argument against a broader vision of judicial policymaking is that American litigation is overly formal and participatory, which narrows the inputs and available tools for courts, creates higher political and economic costs, and as a result is generally less desirable than less court-driven alternatives.³¹³

This critique of judicial policymaking is worth considering. However, I think the account of the supervisory power sketched here, and the broader institutional assumptions it brings with it, undermine or perhaps even obviate some of the concerns Kagan’s theory advances. In brief, Kagan’s critique assumes judicial policymaking comes exclusively through adjudication—indeed it is in the very name of his concept (adversarial). But as discussed in detail in Part II, that is not the case with the supervisory power. It can and does operate outside of the confines of adjudication.

In this way, the supervisory power pushes court authority closer to what Kagan sees as an idealized notion of “bureaucratic legalism.”³¹⁴ In this non-adjudicative context, many of the formalities associated with adjudication—rules of evidence, civil procedure, etc.—are not applicable. Instead, the process is substantially less formal, bringing judicial interventions closer to what Kagan sees as a normatively desirable government concept he terms “political and expert judgment.”³¹⁵

And yet, even when courts do rely on the power in the course of resolving a dispute, it can overcome many of what Kagan sees as the problems with making policy through adjudication. Specifically, the structure of adjudication and corresponding formality of procedural rules results in parties seeking broad policy outcomes under the guise of narrow, highly technical legal questions. Here, too, this Article’s account of the supervisory power can address some of these critiques of judicial policymaking. For example, high courts can and do rely on the authority to reframe or expand the questions presented, override otherwise rigid procedural rules, and other features that might narrow judicial inputs. Further, courts can convene commissions or task forces to operate as enhanced evidence-gatherers to supplement a lone appellate record and better inform their decision-making.

As discussed above, the supervisory power helps illuminate the institutional posture of state high courts and the ways that they challenge some of the background assumptions we typically assign to “courts.”³¹⁶ Kagan’s critique further sharpens that point: generic concepts of what courts do do not map so easily on to state courts; and, with that, nor do some of the normative arguments against robust judicial policymaking roles in governance.

The supervisory power may also have normative consequences for a high court’s legitimacy.³¹⁷ The legitimacy of judicial policymaking is the subject of rich literature, but scholars’ central theses generally focus on the concept of unaccountable institutions wielding purely discretionary power to issue sweeping, final rulings on consequential issues of social policy.³¹⁸ In short, the legitimacy considerations turn on institutional aspects of courts and the nature of the power they wield.³¹⁹

As to structural factors, policymaking by courts is thought less legitimate because of how power is allocated between and among the branches. As courts wield their power in ways that look less and less like interpretation and adjudication, some scholars suggest we should be increasingly skeptical, since constitutional design is said to leave lawmaking to the other branches.

These are important considerations, but we should consider them in light of state constitutional structure. As Neil Komesar has shown, institutional evaluation does not proceed in a vacuum.³²⁰ In other words, a narrower view of state court power—that is, rejecting the account of supervisory power advanced in this Article as normatively undesirable—will likely result in enhancing legislative and gubernatorial power. Passively redistributing authority this way towards a generic equilibrium would be generally inconsistent with the deep skepticism of policymaking by legislatures and executives that animated modern constitutional development.³²¹ It could disrupt the allocation of policymaking directed to the judiciary. In short, state constitutional structure perhaps invites more judicial policymaking than our generic conceptions of institutional roles allow.

Moreover, the accountability of courts (or lack thereof, as is often the case at the federal level) often provides a basis for evaluating the legitimacy of their power. As discussed above, and well established in the literature, state courts are more democratic, more accountable, and subject to more horizontal checks than their federal counterparts.³²² For these reasons, normative critiques of judicial policymaking generally do not map well onto state courts, as these arguments are generally tailored to federal features (e.g., life tenure) or universal conceptions of courts.

Beyond these structural elements, normative evaluations of judicial policymaking often focus on the nature of the power itself and the content of the decisions it produces. On the latter, tired rhetoric, like “legislating from the bench” is well known. But it speaks to a more serious concern that courts are straying too far from devices we generally think of as providing some limitations on court power—text, interpretive canons, precedent, etc.³²³

However, these evaluations assume a certain universe of forms of judicial power—largely a binary between constitutional and statutory interpretation. For example, consider the Warren Court’s procedural revolution. The U.S. Supreme Court crafted a host of procedural rules and frameworks that largely enhanced protections for criminal defendants based on its interpretation of the Fourth, Fifth, Sixth, and Eighth Amendments. The critiques of decisions like Miranda and others are that they lack a basis in precedent and their rules cannot reasonably be squared with the underlying text.³²⁴ These cases affected the Court’s legitimacy because for critics, traditional constitutional adjudication required more fidelity to things like text and case law.

The supervisory power, however, is a decidedly different formulation of judicial authority. As discussed in greater detail in Parts I and II, it is ideally situated for the kind of decisional contexts that require more latitude and discretion than might be available under ordinary judicial review. In this way, the power’s very flexibility is what could make it a more legitimate alternative to otherwise conventional methods of power. Indeed, as a distinctive source of authority, the supervisory power offers an additional tool that can serve as an alternative to attempting to craft doctrinal rules or tests based on ill-fitting constitutional text or precedent or engaging in the debates over “lockstepping.”

Further, we might consider judicial policymaking undesirable because the resulting decisions are sweeping and final and often concern consequential issues of social policy. As a general matter, “state judicial review does not have the same finality” as its federal analogue.³²⁵ But more specifically, the supervisory power is understood as even less final than ordinary judicial review. Whereas the latter might be thought of as “a big red stop sign” to the other branches,³²⁶ use of the supervisory power is perhaps better thought of as an invitation to “dance,” as some former chief justices have put it.³²⁷ Indeed, justices have said implicitly and explicitly that a virtue of the supervisory power is its provisional nature.³²⁸ As Chief Justice Ellen Peters put it, relying on “supervisory authority leaves more flexibility for further input from all the interested constituencies.”³²⁹ In these ways, use of the supervisory power does not have the same aggrandizing effects as other formulations of judicial power that are said to risk a court’s legitimacy.

In sum, our evaluation of the supervisory power should account for two considerations. First, our evaluation should consider its potential for courts to advance their prerogatives and conflict with other branches, as well as its potential to facilitate their cooperation and coordination. Second, while the power is broad, flexible, and highly discretionary, it is subject to boundaries and rooted in both text and institutional context of state constitutions.³³⁰ Further, under a closer examination, we see that traditional arguments against judicial policymaking do not readily track the nature of the supervisory power and structure of state constitutions so easily. As a result, our evaluations of the supervisory power should proceed at the retail rather than wholesale levels. In other words, that courts use the supervisory power along the lines sketched in this Article should not per se raise normative problems. Rather, we should take each application on its own terms and consider it in the context of a court’s zone of supervision.

Conclusion

The state supervisory power enables supreme courts to wield conventional forms of their power with fewer constraints and to assert it in seemingly unconventional ways. This Article offers a descriptive and theoretical account of this important aspect of state supreme court practice—as well as a qualified normative defense of it. It shows that the supervisory power is an essential feature of judicial independence and the broader role of state supreme courts as agents of governance. This feature of state high court practice has been an essential aspect of state constitutional structure, before state high courts’ current moment in the spotlight³³¹ and will be after. To overlook this vital feature of state governance comes at our own peril, as state supreme courts are too important—and now more than ever—to overlook.

98 S. Cal. L. Rev. 1543

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Adam B. Sopko*

*Associate Professor, University of Colorado Law School. Aaron Caplan, Zach Clopton, Adam Crews, Colin Doyle, Marcus Gadson, Tara Grove, Andrew Hammond, Jon Marshfield, Tim Mulvaney, Jim

Pfander, Miriam Seifter, Dan Walters, Bob Williams, Abby Wood, Rob Yablon, Quinn Yeargain, and Adam Zimmerman provided helpful comments. The Article also benefited from discussions at the 2025 Emerging Scholars Conference in Public Law and the Brennan Center’s State Constitutions Lab. I am grateful to Wisconsin law students Mary Berg and Charlotte Gude for terrific research assistance. The editors of the Southern California Law Review provided superb editorial assistance. Thanks also to Sarah Alexander for the constant support and Hunter Sopko for the long weekend naps that made this Article possible.

Liberty Before Party: The Courts as Transpartisan Defenders of Freedom

May 2025May 2025Yunsieg P. Kim*

Like many legislative acts in the United States, election laws are subject to judicial review, often by unelected judges with life tenure. This precipitates what Jacob Eisler calls the counterpopular dilemma. If the laws governing self-rule are dictated by courts that are unaccountable to the people—in the case of Article III judges, by design—they intrude upon democratic autonomy. But without arbiters who are resistant to popular pressure, elections can end up facilitating a mob rule or a tyranny in democratic disguise by enabling elites to manipulate democratic procedures for their own political gain. How, then, can judicial review of election laws be reconciled with democratic self-government?

Eisler’s book, The Law of Freedom: The Supreme Court and Democracy, provides a novel understanding of, and solution to, the counterpopular dilemma. According to Eisler, the counterpopular dilemma “is intractable” if the judicial role in elections is understood in conventional terms: “uniquely positioned outside typical political struggles, and thus especially well-suited to guarantee fair elections.” Instead of limiting freedom, courts should be viewed as advancing freedom, in two conflicting forms. The egalitarian view of freedom “seeks to afford all constituents equal opportunity to freely participate in self-rule.” Thus, the egalitarian view “demands some ‘levelling’ of inequities” that influence elections by, for example, limiting campaign spending. The libertarian view “prioritizes protecting individuals from state intrusion.” Thus, the libertarian view is that “state regulation of campaign finance . . . interfere[s] with personal liberty.” By casting the Supreme Court’s election law jurisprudence as a debate over how best to advance constituent freedom, Eisler provides a much-needed understanding of the Court as an institution in service of a common good—at a time when voters see it as motivated by political expediency, and rising public contempt is becoming an existential threat to judicial authority. I argue that, for Eisler’s theoretically illuminating perspective to become an operationally useful framework for delineating the courts’ role in elections, it must provide an objectively discernible standard for what constitutes a “minimal,” and thus tolerable, counterpopular intrusion into electoral design.

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Perfecting the Judicial Peremptory Challenge: A New Approach Using Preliminary Data on California Judges in 2021

May 2024July 2024Sarah Park*

Even the most carefully planned and genius strategies are pointless without an assumption of fairness: chess depends on a fair arbiter, soccer depends on a fair referee, and litigation depends on a fair judge. Just as arbiters and referees are frequently criticized for questionable decisions, judges also deal with accusations that bias has impermissibly clouded their judgment. To protect litigants, the California Legislature presented a solution—the California Code of Civil Procedure section 170.6, a statute arming litigants with the option to replace their assigned judge if they declare that judge biased. This judicial peremptory challenge asks for no evidence of bias, further frustrating the disagreement between proponents who claim that this right will trigger a chain reaction to increased public confidence and decreased discrimination against litigants, and opponents who conversely warn that it will open a Pandora’s box of abuse, intimidation, and discrimination against innocent judges. The difficulty of constraining various harmful human tendencies is the problem of judicial peremptory challenges writ large.

It appears that much of this policy debate about judicial peremptory disqualification is informed by theory rather than empirical data. The study conducted by this Note reveals that, at least in 2021, (1) peremptory challenges do not occur often but abuse still occurs among the few times they are asserted, and (2) timing and form rules are weak procedural obstacles. My proposal acknowledges that judges are sometimes not the epitome of neutrality but takes issue with litigants who may inflict damage on undeserving judges and the adjudication generally. Instead of the current “no-questions-asked” regime, the recommended procedure is the following: after litigants receive judicial analytics, they can file the disqualification motion with an independent judge who will review both the motion and the challenged judge’s evidentiary explanation for factual and legal sufficiency. Admittedly, like its federal counterpart, this is not peremptory per se, but it is preferrable as it will perfect the peremptory challenge and diminish the risk of abuse even more than the current model.

INTRODUCTION

There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals.

—Justice Cardozo¹

The Lady Justice sculptures that adorn the United States Supreme Court building serve as a reminder of the high standards to which we hold judges: her blindfold and scales represent unwavering impartiality.² But juxtaposing Lady Justice, a godlike figure from ancient mythology,³ with judges, human beings vulnerable to inevitable fallibility,⁴ begs the question of whether these standards are unattainable ideals. What happens when judges cannot wear the blindfold and hold the scales yet still wield the sword symbolizing power?⁵ The California Legislature responded to this reality by enacting California Code of Civil Procedure section 170.6 (“Section 170.6”) which grants judicial peremptory⁶ challenges, or the power to automatically disqualify a judge for bias even without any evidence of such bias, to litigants.⁷ Given that plaintiffs and defendants in the United States bear the burden of proof to succeed in their claims and defenses respectively, the significance of this exceptional legal right is apparent. But the California Legislature was not blind to the potential for this statute to act as a double-edged sword:⁸ litigants and their attorneys are naturally inclined to exploit this power to “shop” for a judge that is likely to favor their cause.⁹ This cost-benefit analysis (“judge shopping,” which seems contradictory to the very essence of judging, weighed against public confidence in the judiciary) still plagues practitioners, legal academics, and judges today, decades after Section 170.6 was added to the California Code of Civil Procedure.

Although peremptory challenges are more commonly associated with jurors rather than judges,¹⁰ the ability to change the assigned judge cannot be understated. The jury has indisputable influence over a case’s outcome by “mak[ing] findings of fact and render[ing] a verdict for [] trial.”¹¹ Indeed, the foundational right to a judgment by one’s peers in the community dates back to the Magna Carta.¹² Nonetheless, the judge still decides questions of law¹³ and thus arguably holds equal, if not more, influence than the jury.¹⁴ This is especially so given all cases have a judge but not all of them have a jury.¹⁵ Moreover, a majority of cases do not proceed to trial: a judge’s ruling on a summary judgment motion has a conclusory effect akin to the end of trial.¹⁶ Even if a case reaches trial, a successful motion for judgment as a matter of law¹⁷ or a motion for new trial¹⁸ can subvert the jury’s verdict.

Considering judges’ unparalleled authority over litigants’ fate, notwithstanding the jury’s role, it is no surprise that judges must not “manifest bias . . . including but not limited to bias . . . based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation . . . .”¹⁹ Judicial independence not only has a rich history predating Enlightenment philosophy,²⁰ but is also at the core of national identity in the United States: former President Adams, one of the Founding Fathers, wrote about the right to trial by “judges as free, impartial, and independent as the lot of humanity will admit” in the original Massachusetts Constitution.²¹ Judges are supposed to represent the best of human nature, maintaining superior morals and ethics. This image erodes when judges rule with regard to “which side is popular” and “who is ‘favored.’ ”²² Impartiality in the courts is not a mere exercise in political correctness but a vital component of a fair, just, and democratic society rid of corruption. Once the public no longer trusts judges to treat them equally with their adversary, a domino effect to anarchy may ensue whereby people will stop respecting and therefore complying with orders from the judiciary and government at large. However, judicial discretion is as crucial to the proper functioning of the legal system as judicial impartiality because indeterminate laws require judges to “consider practical consequences and the overall context of a matter.”²³ Alexander Hamilton, one of the Framers of the U.S. Constitution, distinguished between the “guided exercise of discretion” and the “imposition of personal will and preference” by highlighting the “importance of courageous judges to the preservation of individual liberty and to the amelioration of oppressive legislation.”²⁴

Ideally, litigants would always use Section 170.6 in good faith to defend themselves from judicial bias. Unfortunately, courts confront the ironic truth that some litigants abuse this ability as an offensive maneuver instead. Litigants may take advantage of peremptory challenges to substitute their judge with one that has aligned interests—that is, a biased judge. Section 170.6 can accordingly exacerbate the very problem it was designed to minimize. Bias is a two-way street in which litigants can also discriminate against judges of a particular gender, race, or ethnicity, among other demographics. There was increased legislative movement toward eliminating peremptory juror challenges for this reason in 2021²⁵ and publicity on race-based discrimination in jury selection in 2022.²⁶ If attorneys can discriminate against potential jury members, they can discriminate against judges as well, and the legal field should brace for any future spillover on peremptory challenges to judges. In 2022, 60.1% of judges in California were male, and 61.4% of them were white.²⁷ Imagine the harm that would result if most of the disqualified judges were members of groups that have historically endured discrimination. The judiciary would subsequently lose the diversity of thought and experiences necessary to adequately understand and evaluate heterogeneous litigants from the United States, a country often referred to as a melting pot.

This Note illustrates the need to abandon the judicial peremptory challenge as it exists today and instead opt for a blend of other variations—specifically, the challenge should be less peremptory and more stringent. Preliminary empirical data in 2021 reveals that (1) peremptory challenges do not occur frequently but abuse still occurs among the few times they are asserted, and (2) timing and form rules are weak procedural obstacles. Although the challenge is not widely abused, a different model will decrease the incidences of abuse even further. In lieu of a conclusory allegation of bias that is instantaneously granted, the proposed disqualification approach allows the challenged judge to refute the allegation with evidentiary explanations. This will hopefully pull the reins on the litigants, however few, who make an unwarranted, illusory charge of bias against their judge in order to gain a tactical advantage.

This Note begins by providing a high-level overview of how peremptory challenges to judges are treated by federal courts and other state courts besides California. It also explores Section 170.6 in detail, particularly the statute’s legislative history and interplay with judicial rules and peremptory juror challenges. Next, it summarizes the current policy arguments both in favor and against peremptory disqualification of judges: points of contention include discrimination against judges and confidence in the judiciary, among others. It continues with an analysis of data collected from every order in 2021 in which a California superior court judge decided on a Section 170.6 motion, tracking for the number of filed motions, number of denied motions and why they were rejected, number of disqualified judges, and the disqualified judges’ political party. It then synthesizes the findings with judicial disciplinary actions due to bias in 2021, which informs the policy debate by revealing the concerns that actually come to fruition in practice, rather than in theory only, at least in the context of California for this time frame. It additionally explores the reasons behind challenging a judge using The Robing Room, a public forum. Afterwards, it discusses alternative disqualification procedures offered by some legal scholars before advocating a new approach. Finally, the Note ends with recommendations for future research.

I. MODERN LAW OF JUDICIAL PEREMPTORY DISQUALIFICATION

Section 170.6 is a relatively recent addition to judicial disqualification law²⁸—the decades since its enactment pale in comparison to the more than one thousand years people have spent developing legal justifications for disqualifying judges.²⁹ In the mid-eighteenth century, the thirteen American colonies adopted English jurisprudence that,³⁰ unlike civil law countries, narrowed the scope of judicial disqualification so that a judge could only face disqualification if they had a direct pecuniary interest in the case.³¹ Thus, lacking basis in common law,³² disqualification for bias did not enter the stage until 1903, well after the founding of the United States, when Montana’s legislature answered the cries of a losing litigant.³³ This win for victims of judicial bias was part of a growing focus on ensuring that judges apply the law in an evenhanded manner,³⁴ eventually escalating into the federal law’s official acknowledgment.³⁵ The evolution of judicial disqualification finds itself at a fork in the road: some states in the West and Midwest, including California, allow disqualification with an allegation of bias alone—known as a peremptory challenge—while other states in the East and South join the federal courts in imposing stricter standards by requiring support for the allegation as well.³⁶

A. Federal Law

In 1911, 28 U.S.C. § 144 introduced judicial peremptory challenges into the federal realm.³⁷ This federal statute closely mirrors Section 170.6 as it permits the disqualification of a district court judge upon a timely affidavit claiming bias. However, it departs from Section 170.6 in a significant way: it requires the affidavit to “state the facts and the reasons for the belief that bias or prejudice exists” and accordingly affords less leeway to litigants.³⁸ On its face, its wording and legislative history hint at the intent for peremptory disqualification;³⁹ judicial interpretation steered it on the opposite trajectory.⁴⁰ After the Supreme Court in Berger v. United States opined that the challenged judge may conduct a hearing to scrutinize the alleged facts for legal sufficiency,⁴¹ the Court clarified in Liteky v. United States that “expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display” fall short of bias.⁴² The latter case defined the extrajudicial source doctrine: critical, disapproving, or hostile opinions based on facts or events during the proceedings do not warrant disqualification unless “they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.”⁴³ Congress largely acquiesced to this rejection of peremptory intent lest they infringe upon the separation of powers by attempting to regulate the judiciary.⁴⁴ As a result, “disqualification under [28 U.S.C. § 144] has been rare.”⁴⁵ Naturally, the statute could no longer be classified as fully peremptory, distinguishing it from its state counterparts that order automatic disqualification, like Section 170.6.

B. California Law

1. California Code of Civil Procedure Section 170.6

In 1957, the California legislature debated whether to accept or deny the legacy of judicial peremptory challenges and ultimately concluded with the birth of Section 170.6 through an “overwhelming vote of both houses of the Legislature” and approval by the Governor.⁴⁶ The legislation was more radical⁴⁷ than California Code of Civil Procedure section 170.1 which concerns challenges for cause⁴⁸ and California Code of Civil Procedure section 170.5 (added as section 170.4 in 1897), which addresses bias as a ground for disqualification.⁴⁹ This was not the first time the Legislature dealt with judicial peremptory challenges: four previous measures failed to receive executive approval despite passage by the Legislature.⁵⁰ Therefore, Johnson v. Superior Court, the first case to apply Section 170.6, acknowledged how the “[s]tate [b]ar and the Legislature have long felt that there is a need for such a measure.”⁵¹

Unlike federal judges under 28 U.S.C. § 144, California judges generally fortified Section 170.6 by “liberally constru[ing it] with a view to effect its objects and to promote justice,”⁵² starting with its constitutionality. Since the constitutionality of peremptorily disqualifying a judge has been debated since the early twentieth century,⁵³ it comes as no surprise that Section 170.6 came under attack almost immediately after its enactment. Even before the Legislature took action, the courts in the state ruled in several cases that a similar disqualification statute enacted in 1937 was unconstitutional.⁵⁴ Johnson represented a turning point as the Supreme Court of California deemed Section 170.6 constitutional and overruled the lower court’s decision that “the statute makes an unconstitutional delegation of legislative and judicial powers to litigants and their attorneys and is an unwarranted interference with the powers of the courts.”⁵⁵ Section 170.6 is materially different from its unconstitutional predecessor because it calls for litigants to submit a sworn statement instead of a “judicial determination of the existence of the fact.”⁵⁶ According to the court, Section 170.6 complies with the Constitution and deserves protection because “[p]rejudice, being a state of mind, is very difficult to prove, and, when a judge asserts that he is unbiased, courts are naturally reluctant to determine that he is prejudiced.”⁵⁷ About twenty years later, Section 170.6’s constitutionality returned to the forefront in Solberg v. Superior Court—this court found no separation of powers violation under California Constitution Article III, Section 3.⁵⁸ In a post-Johnson and Solberg world, the conversation between Section 170.6’s proponents and opponents has shifted away from constitutionality, but policy concerns persist. As this Note will later discuss, the thousand-year-old debate has still not found its rest.

Section 170.6 was amended to widen its scope: beginning in 1959, the statute extended to criminal, not just civil, cases,⁵⁹ and beginning in 1961, oral statements under oath, not just written documents.⁶⁰ This trend halted in 1965, when the Legislature forbade litigants from receiving a judicial reassignment if their original judge already presided over a proceeding prior to trial that involved a “determination of contested fact issues relating to the merits.”⁶¹ For the next ten or so years, the statute was only amended twice—in 1967⁶² and 1976⁶³—to subject court commissioners and referees to potential peremptory disqualification as well.⁶⁴ The Legislature obviously did not shy away from its peremptory intent, given that the affidavit form was amended in 1981 to add “peremptory challenge.”⁶⁵ After another amendment in 1982 that clarified the timeliness requirement for single-judge systems,⁶⁶ the statute was expanded yet again in 1985. Now, litigants who file an appeal that results in the reversal of the trial court’s judgment qualify for protection if the “trial judge in the prior proceeding is assigned to conduct a new trial on the matter.”⁶⁷ Timeliness was then defined as ten days for criminal cases with an all-purpose assignment in 1989.⁶⁸ The following two amendments in 1998⁶⁹ and 2002⁷⁰ responded to modifications of the California Constitution—the elimination of the justice court⁷¹ and unification of the municipal and superior courts, respectively⁷²—which were products of the Legislature’s “stead[y] move[ment] towards completion of the courts’ restructuring.”⁷³ In 2003, the Legislature merely maintained the codes⁷⁴ and did not make any substantive changes.⁷⁵ The last amendment, in 2010, made similar corrections, but also extended the filing deadline for civil cases with an all-purpose assignment to fifteen days after receiving notice of the assignment⁷⁶ and “codif[ied] existing court practices by requiring the party making the challenge to notify all other parties within five days after making the motion [to peremptorily disqualify the judge].”⁷⁷

In general, Section 170.6 guarantees litigants the extraordinary right to have an alternate superior court judge hear their matter once they accuse their judge⁷⁸ of bias, even without any factual basis for actual bias.⁷⁹ Litigants can raise a challenge under Section 170.6 at any trial, special proceeding, or hearing involving a “contested issue of law or fact,”⁸⁰ including trial, law and motion proceedings, injunction hearings, and contested probate or family law proceedings, but excluding settlement or case management conferences.⁸¹ Each side in a case, defined by whether the co-plaintiffs or co-defendants have substantially adverse interests,⁸² is given one challenge—the norm.⁸³ “[I]f the trial judge in the prior proceeding is assigned to conduct a new trial⁸⁴ on the matter” after “reversal on appeal of a trial court’s final judgment,” the movant can still use Section 170.6 regardless of whether they have already availed themselves of this procedure.⁸⁵ They, however, cannot make the motion “for the first time in post-trial matters which are essentially a ‘continuation’ of the main proceeding,”⁸⁶ meaning “action[s] . . . involv[ing] ‘substantially the same issues’ and ‘matters necessarily relevant and material to the issues involved in the original action.’ ”⁸⁷ Absent good cause, there is no continuance of the trial or hearing because of the motion; if a continuance is granted for other reasons, the matter must be continued for limited periods to be reassigned as soon as possible.⁸⁸ In the aftermath of the 2010 amendment, civil litigants must serve notice on all parties within five days of making the motion.⁸⁹

Either an affidavit accompanied with a declaration that a “fair and impartial hearing or trial cannot take place” under penalty of perjury⁹⁰ or an oral motion under oath will suffice as long as it is made before the hearing or trial commences.⁹¹ Litigants should submit the written or oral motion “as soon as possible after [they] know[] with some reasonable certainty who the actual trial judge will be”⁹² and must take care to abide by the timing rules governing master calendar, all-purpose, and single-judge systems. Table 1 below describes each of these various case-management systems and their nuances:

Table 1.
Case-Management System	Definition	Rules
Master Calendar	The case is assigned to different departments for specific types of matters.^a	The litigant should make the motion to the judge supervising the master calendar. When the case is set for immediate trial, litigants are instructed to make their challenge at the time of assignment, but when the case is set for a later trial date, they should comply with the 10-day/5-day rule.^bThe 10-day/5-day rule dictates that a litigant must make their challenge at least five days before the trial or hearing date if the judge’s identity is known at least ten days before the trial or hearing date.^c If they wait until they appear before the judge, they will have essentially waived their right to challenge that judge.^d However, a late-appearing or late-named party will not be penalized as long as they make the motion within ten days after their appearance.^e
All-Purpose/ Direct-Calendar	The randomly assigned judge “maintain[s] [their] own calendar, set[s] and handl[es] all motions and other proceedings, and conduct[s] trial.”^f At the time of the assignment, the judge must be expected to process all substantial matters in addition to trial.^g	Once a civil litigant receives notice^h of an all-purpose assignment, they have fifteen days to make their challenge.ⁱ If the litigant receives service by mail, they are entitled to a five-day extension.^j However, if the litigant has not yet appeared, they have fifteen days after their appearance.^k For a criminal litigant, they have ten days instead of fifteen days.^l
Single-Judge	There is only one judge in the courts.^m	A litigant must make their challenge within thirty days after they first appear in the action.ⁿ
Sources: ^aO’Connor’s California Practice Civil Pretrial, supra note 48, at Ch. 3-E § 3.3(2)(a). ^bSee, e.g., People v. Roerman, 10 Cal. Rptr. 870, 878–79 (Ct. App. 1961) (rejecting the motion because it was not made until the day trial was scheduled to begin even though the case was calendared to the judge for more than a month). ^cE.g., Eagle Maint. & Supply Co. v. Superior Ct., 16 Cal. Rptr. 745, 747 (Ct. App. 1961). ^dSee, e.g., Michaels v. Superior Ct., 7 Cal. Rptr. 858, 860–61 (Ct. App. 1960); Peremptory Challenges to a Judge in California, L. Off. of Stimmel, Stimmel & Roeser, https://stimmel-law.com/en/articles/peremptory-challenges-judge-california [https://perma.cc.6NLU-5PLS]. ^eSch. Dist. of Okaloosa Cnty v. Superior Ct., 68 Cal. Rptr. 2d 612, 612 (Ct. App. 1997). ^fO’Connor’s California Practice Civil Pretrial, supra note 48, at Ch. 3-E § 3.3(2)(b). ^gSee, e.g., People v. Superior Ct. (Lavi), 847 P.2d 1031, 1043 (Cal. 1993). ^hAccording to the opinion of Cybermedia, Inc. v. Superior Ct., 82 Cal. Rptr. 2d 126, 127 (Ct. App. 1999), notice should reference the case name and full case number and be addressed to the attorney if the party is represented; otherwise, it is insufficient. ⁱCal. Civ. Proc. Code § 170.6(a)(2) (Deering 2023). ^jMotion Picture & Television Fund Hosp. v. Superior Ct., 105 Cal. Rptr. 2d 872, 876 (Ct. App. 2001). ^kCiv. Proc. § 170.6(a)(2). ^lId. ^mO’Connor’s California Practice Civil Pretrial, supra note 48, at Ch. 3-E § 3.3(2)(b). ⁿSee, e.g., People v. Superior Ct. (Smith), 235 Cal. Rptr. 482, 484 (Ct. App. 1987) (refusing the movant’s argument that their motion was timely because it was made within thirty days after their attorney’s first appearance).

If litigants who successfully appeal the trial court’s judgment end up with the same trial judge, they must make the motion “within [sixty] days after the party or the party’s attorney has been notified of the assignment,”⁹³ or else it will be time-barred. The motion must be directed to the very judge under attack (the particular department will not suffice) who will then determine if it has been duly presented.⁹⁴

There are compelling policy reasons for these rules, namely that both litigants who “wish[] to postpone [the] motion until [they are] fully informed” and the court that needs “time to make adjustments after a disqualification” are satisfied.⁹⁵ Also, criminal litigants have less time to submit their motions than civil litigants because, like the Legislature probably thought, there are heightened concerns of abuse in criminal cases⁹⁶ in which “the sides . . . are not in symmetrical positions,” as the prosecution possesses more power.⁹⁷ Criminal cases usually involve juries that dilute the judge’s influence, whereas civil cases are usually wholly decided by the judge.⁹⁸ Even so, criminal defendants are insulated from the “depriv[ation] of life, liberty, or property, without due process of law” by the Bill of Rights in the Fifth Amendment of the U.S. Constitution.⁹⁹ Given what they have to lose as compared to civil litigants, it is critical to avoid infringement on their right to a fair trial.

If the motion is timely filed with acceptable form,¹⁰⁰ it will be granted, and the transition process is automatic in the sense that the affidavit is not contestable. The “judge immediately loses jurisdiction over the case,” and “any action that [they] make[] in the case [is] considered ‘void,’ ” save to transfer the case to another judge.¹⁰¹ A challenge is “exercised when the challenged judge transfers the case for reassignment,”¹⁰² and it cannot be rescinded, no matter what—the dismissal of the movant makes no difference.¹⁰³ If no other judge is available, the disqualified judge should contact the Chairman of the Judicial Council to solicit the assignment of an outside judge.¹⁰⁴ In order to prevent the appearance of judicial impropriety, if the judge is assigned to more than one case concerning the same movant, they are disqualified from all such cases.¹⁰⁵ A writ of mandate petition is the “exclusive means of appellate review” for the motion, irrespective of its success.¹⁰⁶ Upon a failed motion, the litigant has two avenues of redress before appeal: review by a different judge, like the district’s chief judge, and mandamus review.¹⁰⁷ On the other hand, litigants who never assert a challenge will have “forfeited the right to complain about [how the trial court’s alleged bias affected subsequent rulings] on appeal.”¹⁰⁸

2. Judicial Rules

Section 170.6 intersects with other bodies of judicial rules, complicating the tapestry of California peremptory disqualification law. Upholding impartiality in the courts permeates all the guidelines that judges should follow, regardless of origin—Standard 10.20(b)(3) of the California Rules of Court instructs judges to “ensure that all orders, rulings, and decisions are based on the sound exercise of judicial discretion and the balancing of competing rights and interests and are not influenced by stereotypes or biases.”¹⁰⁹ In light of this goal, the California Rules of Court encourage outreach to the community¹¹⁰ and collaboration with local committees and bar associations that endorse programs designed to educate about unconscious biases.¹¹¹ When litigants encounter judges who ignore Standard 10.20 of the California Rules of Court, they can submit complaints of bias either directly to the court or to the Commission on Judicial Performance without losing their statutory remedy through Section 170.6.¹¹² California Code of Judicial Ethics Canon 3D(4), Government Code section 68725, and Rule 104 of the Rules of the Commission on Judicial Performance obligates judges to cooperate with the Commission on Judicial Performance.¹¹³ In one instance, the Commission on Judicial Performance ordered the removal of a judge who communicated with the potential movant to stop their challenge.¹¹⁴

California Code of Judicial Ethics Canon 3B(5), Canon 3C(1), and Canon 3E(5)(f)(iii), among others, comport with the Model Code of Judicial Conduct rule 2.3¹¹⁵ because they advise that judges should be free of bias.¹¹⁶ Similar to the California Standards of Judicial Administration, California Code of Judicial Ethics Canon 3B(6) directs judges to “require lawyers in proceedings before [them] to refrain from . . . bias.”¹¹⁷ They consequently may feel cognitive dissonance (psychological discomfort from simultaneously complying with incongruous beliefs¹¹⁸) from essentially allowing litigants to discriminate against them using Section 170.6. Granted, these “standards, insofar as they may conflict with [S]ection 170.6, would be ‘invalid’ since the Judicial Council may only make rules which are not inconsistent with statute,”¹¹⁹ but this paradox may still trouble them. Furthermore, California Code of Judicial Ethics Canon 3D(1) instructs judges with reliable information on the violations of other judges to report those violations to the appropriate authority and take any other corrective actions.¹²⁰ Considering these numerous regulations that either officially or informally punish judges who harbor biases, whether explicit or not, are peremptory disqualifications truly necessary?¹²¹

3. Comparison to Peremptory Juror Challenges

In California, judicial peremptory challenges enjoy less resistance than in some other jurisdictions¹²² but are nonetheless more controversial than peremptory juror challenges. The California legislature passed AB 3070 in 2020—a proposal to require “the party exercising the peremptory challenge [to] show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation.”¹²³ The Legislature deliberately replaced the need to show purposeful discrimination under an objective standard in order to better target unconscious bias.¹²⁴ Unlike judicial peremptory disqualification, in which there is confusion regarding who holds the cause of action for discriminatory exclusion,¹²⁵ the bill clearly gives the right to both the party and the trial court. California Governor Gavin Newsom signed the legislation into law (California Code of Civil Procedure § 231.7), which went into effect for criminal trials on January 1, 2022 and will take effect for civil trials starting January 1, 2026.¹²⁶ The statute joined reforms in other states:¹²⁷ Washington enacted a similar procedure in 2018 that was praised as a solution to Batson v. Kentucky,¹²⁸ a landmark case prohibiting unconstitutional discrimination during jury selection.¹²⁹ After observing Batson’s shortcomings in actually resolving racial bias and discrimination,¹³⁰ supporters argue that the spirit and letter of this legislative decision carries the promise of giving life to the federal precedent.¹³¹

But this law is not without dissenters. The Alliance of California Judges rebukes it for creating “confusion and delay” since “lawyers could challenge every peremptory challenge made by the other side.”¹³² Ultimately, it falls short of putting an end to peremptory juror challenges altogether, making others think that the change is not enough: Senate Bill 212 was introduced in 2021, which would have abolished peremptory challenges in criminal cases.¹³³ One wonders at the end of the day if it is still accurate to classify this challenge as peremptory as “[a] challenge subject to questioning and explanation is, by definition, not peremptory.”¹³⁴ Whether judicial peremptory challenges can inherit this reform such that it is workable to judges poses an interesting question.

C. Comparison Between California Law and Other States’ Law

Section 170.6 is one of the two forms of judicial peremptory challenges practiced by twenty states. Judicial officers in thirteen states, like jurors, can be substituted upon request without any accusation of improper personal interest, while those in the remaining seven states can only be substituted upon an affidavit of bias.¹³⁵ Table 2 below describes some differences between Section 170.6 and peremptory challenge statutes in other states:

Table 2.
Parameters	Section 170.6	Statutes in Other States
Is there a fee for reassignment to a new judge?	No	Yes^a
How many challenges to a party per case?	One	Two^b
Does alignment of interest or lack thereof define a party (or side)?	Yes	No^c
Must litigants informally ask the judge to voluntarily recuse from the case before filing an affidavit?	No	Yes^d
Can criminal litigants transfer their case to a different judge?	Yes	No^e
Sources: ^aSee, e.g., Mont. Code Ann. § 3-1-804 (West 2023); Nev. Rev. Stat. Ann. § 1.230 (West 2023). ^bE.g., Or. Rev. Stat. § 14-250-70 (West 2023). ^cMo. R. Civ. Pro. § 51.05 “divides the parties into classes (e.g. plaintiffs, defendants, third party plaintiffs, third party defendants, interveners) and affords one change of judge per class” and Nev. Rev. Stat. Ann. § 1.230 treats “[e]ach action, whether single or consolidated . . . as having only two sides. Clingman, supra note 135, at 337–38. ^dS.D. Codified Laws § 15-12-22 (2023); see Clingman, supra note 135, at 338. ^eInd. Code Ann. § 35-36-5-1, Nev. Rev. Stat. Ann. § 1.230, Tex. Gov’t Code Ann. § 74.053, and Wyo. R. Civ. P. 40.1(b)(1) are some statutes that recognize this right in civil cases only. Clingman, supra note 135, at 338.

Although these states are not uniform in protocol, they all place weight on a movant’s good faith and decline to investigate whether the movant’s reasons, if even stated, are true, differentiating state law from federal law, which demands supporting facts.

II. THE POLICY TRADE-OFFS

A. Public Confidence in the Judiciary

Those who applaud the judicial peremptory challenge, a device that makes it easier to disqualify judges, emphasize its utility in maintaining and increasing public confidence that the judiciary will deliver equal justice under the law. Although “the law, not any individual or group, is a judge’s only legitimate constituent,” judges have free speech protections in judicial election campaigns.¹³⁶ If their views on controversial legal and political issues are broadcast through various media outlets, the public will naturally lose hope that due process¹³⁷ still exists in the courtroom. Since judges will likely reveal their biases, there are practitioners who advocate for appellate courts to adopt the peremptory strike system, as in California trial courts through Section 170.6, so the public can trust that their matters will be heard by a neutral arbitrator.¹³⁸ They echo Justice Kennedy’s advice for states to “adopt[] recusal standards more rigorous than due process requires” in an effort to protect judicial integrity.¹³⁹ Meanwhile, worried about the increasing caseload burdening the federal judiciary, some academics urge Congress to set up a commission responsible for establishing a judiciary reform act that would go into effect in 2030.¹⁴⁰ As the judiciary becomes more congested with inefficient case management and reduced dockets, judicial competence suffers, especially considering the “10% problem,” which is a “rough estimate of the percentage of district court judges who are considered unfit or limited in their capacity to dispense justice fairly.”¹⁴¹ These academics provide the 2030 Commission with a solution: peremptory challenges.¹⁴²

Curiously, the reason cited for condemning the challenge sounds familiar—increasing public confidence in the administration of justice. One legal scholar believes peremptory disqualification injures the judiciary’s reputation because “automatic transfer does not permit a judge to refute the allegations of bias, and so may create the public impression that more judges are biased, or have conflicts of interests, than is actually the case.”¹⁴³ Regrettably, judicial discretion, in which “the law gives the judge a range of options and choices, or relies on the judge’s assessment of the circumstances in drawing further conclusions,” exposes judges to criticism without crisis managers to guide them through this era of social media.¹⁴⁴ As committees and organizations dedicated to judicial independence face extinction, many stress the need for the legal profession to rally in defense of judges, perhaps by devoting resources to educating the public on what judges actually do.¹⁴⁵

B. Abuse of the Challenge

Peremptory challenges to judges can disrupt the harmony between not just a litigant and their judge, but also the litigant’s attorney and the judge, as well as the litigant and their attorney, essentially poisoning the most material relationships in the courtroom. First, the litigant must present the motion to the very judge they want disqualified.¹⁴⁶ Since the judge knows the movant’s identity, they may feel “frustrated at being required to grant relief to a party who had made what [they] consider to be an unwarranted slight to their integrity.”¹⁴⁷ If the motion is rejected, the litigant is stuck with the allegedly biased (and now insulted) judge until appeal because it is difficult to prevail on other review proceedings.¹⁴⁸ Second, although the attorney might wish to evade a particular judge for their entire legal career, a successful motion in one case does not insulate them from the judge’s hostility in future cases.¹⁴⁹ Third, caught in a web of ethical obligations, the attorney deals with an uncomfortable dilemma: Are they loyal to the judge or their client? No matter their self-interest to stay on good terms with the judge, they must reconcile their duty of vigorous advocacy on behalf of their client with their duty of honesty and respect to the court. They are probably tempted to use their affidavit power (that is, to capitalize on the boilerplate affidavit requesting only a conclusory accusation of bias) to win their client’s case, for they are given the benefit of the doubt.¹⁵⁰ However, their capability as “true advocates” is impeded by ethical rules that impose professional discipline should they lie about judges.¹⁵¹ They also cannot claim the full extent of free speech rights under the First Amendment, presumably fueling their apprehension at the growing number of sanctions in 2022.¹⁵²

Since the genesis of peremptory disqualification statutes, the risk of “judge shopping” has haunted legal scholars and practitioners alike. They argue that marginal improvements to judicial accountability do not warrant sacrificing judicial independence and integrity. When litigants judge shop under the guise of eliminating bias, they perpetuate the narrative that judges are simply “politicians in black robes” even though the Model Code of Judicial Conduct, court rules, judicial discipline sanctions,¹⁵³ and public opinion motivate judges to act properly. Admittedly, this illegitimate purpose is not allowed; the challenge, however, is an absolute right without regard for pretenses. For instance, according to one columnist, “[Section 170.6] could be warranted against the judge who tends to let all of [their] cases go to trial” if the attorney is “hoping to escape [the case] via summary judgment.”¹⁵⁴

To rebut these complaints of abuse, the challenge’s supporters point to the stringent rules governing the motion: specifically, its timing (framed as rushing litigants to “move[] as expeditiously as . . . is possible . . . after theretofore agreed on matter becomes litigated”¹⁵⁵) and form. These restrictions should discourage litigants from not only judge shopping, but also “from waiting to see how the judge views the case and rules on motions before making the peremptory challenge decision.”¹⁵⁶ Section 170.6, for example, is a “limited right and is not a vehicle for disqualifying judges in all situations in which there is a potential for bias.”¹⁵⁷ One law professor advances a limited conception of misuse such that litigants (1) can avoid extremist judges who are not necessarily biased but (2) cannot technically judge shop since a randomly assigned judge will preside over the previously assigned judge’s disqualification.¹⁵⁸ Peremptory disqualification increases the chance of the new judge sharing the same beliefs as most judges, which promotes a representative judiciary that reflects the citizenry because “an average judge may be more representative than a random one.”¹⁵⁹ This kind of judge shopping, as defined by the challenge’s opponents, is akin to “forum shopping,”¹⁶⁰ but the former is attacked as a radical threat to American ideals, while the latter enjoys more forgiveness from critics. The same can be said of “filing several cases simultaneously and dismissing all but the case before one’s preferred judge.”¹⁶¹ Besides statutory safeguards, like the very short window of opportunity to exercise a challenge, litigants might eschew the challenges—if their motion succeeds, they risk an even more unfavorable judicial draw, but if their motion fails, they risk a resentful judge.

C. Intimidation of Judges

There is also a strong assertion that judges will encounter intimidation, further cementing the deadlock between the two stances. A judge is more likely to be influenced by pressure from the litigant and their attorney when the defendant’s life, liberty, and property are hanging in the balance—in other words, criminal cases. Does the judicial peremptory challenge enable prosecutors to shop for “law and order” judges who are “tough on crime”?¹⁶² If a judge is peremptorily disqualified from every criminal matter to which they are assigned (colloquially known as “papering” or “blanket challenges”),¹⁶³ they risk not only a non-criminal reassignment that poses a “very serious problem for a judge whose entire legal career has been spent in the criminal justice system,”¹⁶⁴ but also transfer to a court that is, in their opinion, more inconvenient or less prestigious.¹⁶⁵ As judges try to appease prosecutors to avoid repeated disqualification, the pool of judges actually deciding criminal cases becomes undersaturated with lenient and liberal judges.¹⁶⁶ Prosecutorial control over judges (along with other challenges due to unusual judicial philosophies) results in a much smaller spectrum of worldviews among judges, hampering the development of legal interpretations and encumbering healthy debate.¹⁶⁷ Erwin Chemerinsky responds to the “unlimited use of peremptory challenges against a single judge, albeit in different cases,” by prescribing even greater procedural protections.¹⁶⁸ However, even if litigants manipulate this mechanism to pressure judges,¹⁶⁹ it is hard to imagine judges succumbing to partiality after only one or even a few cases. Perhaps district attorneys or public defenders who frequently appear in the same court can effectively intimidate judges,¹⁷⁰ but in the big picture, criminal cases make up a small subset of total filings.¹⁷¹

D. Discrimination Against Judges

Two law professors illustrate how judicial peremptory challenges can act as a vehicle for discrimination: one uses a hypothetical,¹⁷² while the other uses two cases in which attorneys were accused of discriminating against their judges.¹⁷³ There is a 1985 study suggesting that race-based abuse of the challenge was rare,¹⁷⁴ but the latter professor dismisses its applicability because there is now greater awareness about the unconstitutionality of racially charged decisions,¹⁷⁵ especially after Batson and J.E.B. v. Alabama ex rel. T.B.¹⁷⁶ With more judges who identify with marginalized groups, there are consequently more opportunities for challenges based on protected characteristics (leading to disproportionate disqualifications along racial lines, for example).¹⁷⁷ In California, where 63.1% of judges are white, a white judge will probably substitute a disqualified judge of color.¹⁷⁸ These removals are contrary to a socioeconomically representative judiciary—judicial officers from historically oppressed groups are more likely to have public-interest experience and less likely to have a upper-class background than their colleagues.¹⁷⁹ Additionally, empirical studies implying that age and gender are outcome determinative may tempt litigants into issuing ageist or sexist challenges.¹⁸⁰ Other studies have confirmed the discriminatory effects of peremptory juror challenges,¹⁸¹ substantiating arguments that the challenge is inherently flawed and does more discriminatory harm than any good.¹⁸² This could ring true for judicial peremptory challenges as well: What is stopping attorneys who discriminate against jurors from also discriminating against judges?

Then again, litigants are forbidden from exercising the challenges solely based on group affiliation like race and ethnicity, gender, sexual orientation, religion, and so forth.¹⁸³ They may not even want to rely on such factors—a judge’s “prior decisions made while on the bench, statements made in public forums, [and] professional and political reputations years deep”¹⁸⁴ better predict judicial propensity, after all. According to a member of the Alaska Judicial Council, the challenges in that state did not, in fact, depend on race or gender.¹⁸⁵ The problem, however, is not simply solved. Take California Code of Civil Procedure section 170.2, Section 170.6’s sister judicial disqualification statute, for example. It prohibits discrimination against judges, yet it does not seem to apply to Section 170.6.¹⁸⁶ Despite precedent that judges deserve shelter under the Equal Protection Clause of the Fourteenth Amendment,¹⁸⁷ “any party charging that [their] adversary has used a [S]ection 170.6 challenge in a manner violating equal protection bears the burden of proving purposeful discrimination,”¹⁸⁸ which is a high, if not unattainable, standard. Historical patterns of a movant’s discrimination could replace direct evidence of discriminatory intent, but there is a caveat: Is it possible to discern a pattern from a relatively small sample size?¹⁸⁹ Moreover, in the event the judge, as the right holder, declines to pursue their cause of action for discriminatory challenges, there is much uncertainty about whether litigants then have standing to object.¹⁹⁰

III. EMPIRICAL FINDINGS IN CALIFORNIA

A. Research Methodology

It appears that much of the policy debate about judicial peremptory disqualification is informed by theory rather than empirical data. Where are the surveys asking the public in states that allow the challenge about their confidence in the judiciary and perception of judicial bias? There is some research investigating how the challenges can intimidate judges (especially if initiated by prosecutors¹⁹¹) and discriminate against judges of a certain race or gender.¹⁹² Nonetheless, there remains a dearth of statistical findings regarding the frequency and type of abuses resulting from peremptory challenges in actual operation.¹⁹³ “[W]ithout [the collection of empirical data], predictions about what attorneys will do [or cause] with peremptory challenges are guesswork,” leaving the aforementioned hypotheses with no answers.¹⁹⁴ Therefore, this Note aims to paint a more complete picture by tackling two questions: (1) do strict procedural rules really act as a barrier to slow the number of disqualifications, so the number of disqualified judges is roughly equal to the number of judges disciplined for bias, and (2) are there discriminatory effects based on judges’ political parties that prevent a representative judiciary? It will do so by adhering to the recommendations to examine orders on peremptory challenges in cases.¹⁹⁵

Due to limited time and resources, only the available orders on LexisNexis (specifically, the 240 citing decisions of Section 170.6 after filtering for a timeline of January 1, 2021 to December 31, 2021) are analyzed. LexisNexis is a trustworthy source,¹⁹⁶ but checking other databases, such as Westlaw, would have ensured that this methodology did not overlook orders. This truncated sample is largely not generalizable to the years before or after 2021. California is also not a microcosm for the entire nation: when interpreting the number of disqualified judges who were registered Democrats versus the number of disqualified judges who were registered Republicans, one should remember that California is a “blue” state that is considered a Democratic stronghold. Further, this Note interprets suggestive trends, not causal relationships, from the data as no formal statistical methods are used. Lastly, given that the cases’ dockets, including other related orders, opinions, and filings are not reviewed, there is missing information for some orders (for instance, the disqualified judge’s identity, the order’s date, whether the order was accepted or denied, and the reason behind the decision), which could misrepresent the results. For decisions that anonymously mention both the disqualified judge and the supervising or presiding judge, and hence create confusion about the role of the decision’s author, the analysis below errs on the side of caution and excludes these orders when tracking disqualified judges. Ideally, the study would only include orders from 2021; for consistency, it includes orders both without a date and from before 2021 if the decision that discusses the order is from 2021.

B. Preliminary Empirical Data

There were 134 cases from January 8, 2021 to December 30, 2021 that revealed 158 ascertainable orders either accepting, denying, or discussing previously accepted or denied judicial peremptory challenges. For reference, there were 4,464,380 total filings in California superior courts in 2021.¹⁹⁷ Curiously, out of the 58 counties in California, only 11 (19%) had reported orders: Los Angeles (76 filed motions), Orange (41 filed motions), Sacramento (24 filed motions), San Diego (5 filed motions), Alameda (3 filed motions), Riverside (3 filed motions), Contra Costa (2 filed motions), Butte (1 filed motion), Madera (1 filed motion), San Francisco (1 filed motion), and Santa Clara (1 filed motion). Given that the study found 158 motions from just 134 cases and movants in only 11 out of 58 counties, this low occurrence of the challenges suggests that (1) litigants are generally not taking advantage of this litigation tool for improper purposes and (2) a majority of judges are perceived to be impartial. Since succeeding judges are randomly selected, there is a chance that litigants who detected bias in their judge would have issued a challenge if not for the fear that they might have to litigate under an even more biased judge. But, excluding pessimistic litigants who have little faith in judicial officers as a whole, it is unlikely that they will choose not to file a motion and endure a laborious litigation under a biased judge.

Among the 158 motions under Section 170.6, only 54 (34%) denied the challenge—Figure 1 displays the number of denials per specific reason:

Figure 1.

Section 170.6 is replete with rigorous procedural rules to make it harder for litigants to recklessly eliminate a qualified judge assigned to their matter. First, a little more than half of the denied motions (52%) failed to comply with Section 170.6(a)(2)’s timing standards.¹⁹⁸ Second, 4 challenges (7%) were defeated because they were addressed to an appellate judge and thus did not survive Section 170.6(a)(1).¹⁹⁹ Third, there was a three-way tie for reasons that blocked 3 motions (5.5%) each: submitting more than one challenge, in violation of Section 170.6(a)(4), whether it was from one party or one determined side;²⁰⁰ the continuation rule, codified by Section 170.6(a)(5); and the form standards, mandated by Section 170.6(a)(5) for written affidavits and Section 170.6(a)(6) for oral statements.²⁰¹ Fourth, 2 others (4%) were unsuccessful because the court had no authority.²⁰² Fifth, 1 (2%) was denied as the movant had not yet appeared in the action.²⁰³ There was also a strange motion that was declared a “sham” since the litigant who filed the challenge was not a real person—as a result, the judge denied the challenge as it was not “duly presented” in accordance with Section 170.6(a)(4).²⁰⁴ Regrettably, the reasons for 9 denials (17%) could not be gleaned from the publicly available case material.²⁰⁵

In line with the empirical finding that 66% of challenges were granted, attorneys, at least competent ones, are not only aware of the timing and form rules, but also successfully follow them. This comes as no surprise considering they are used to meeting the many deadlines that make up litigation. The odds of submitting a faulty challenge and consequently suffering under an offended judge are negligible—presumably, counsel would not carelessly file a motion that they know or should know is bound to fail. There are several safeguards that litigants must navigate, but untimeliness, the most frequent reason for rejected motions, was a weak barrier, stopping just 18% of the challenges. The statute counts on the time limit for filing the motion to prevent litigants from peremptorily disqualifying their judge based on how the judge has been ruling on the case. However, litigants or their attorneys may already know how the judge will view their case as soon as they receive the judicial assignment (or at least within the designated time frame) due to “random internet searches, anecdotal opinions from colleagues, or perhaps printed biographical material about the judge.”²⁰⁶ Hence, it looks like the limit on the number of challenges per case is the only statutory design that might effectively stall abuse, as litigants are reluctant to gamble that their new judge will not be worse.

The remaining 104 successful challenges (66%) disqualified at least 37 judges from 1 or more cases. Figure 2 below illustrates this proportion:

Figure 2.

Given there were 1,755 superior court judges in 2021,²⁰⁷ 2% of those judges (notwithstanding both the unnamed judges and judges who ruled prior to 2021) were peremptorily disqualified. According to the California Commission on Judicial Performance’s 2021 Annual Report, a judge was disciplined for bias on 8 occasions: 5 times for “bias or appearance of bias not directed toward a particular class (includes embroilment, prejudgment, favoritism)” and 3 times for “bias or appearance of bias toward a particular class.”²⁰⁸ For context, there were “1,868 judgeships within the commission’s jurisdiction” including the judicial positions at the supreme court, courts of appeal, and superior courts.²⁰⁹ Even if all 8 instances of bias were from different superior court judges, less than 1% (0.5%) of all superior court judges would have faced discipline.

According to this data, there were more disqualified judges (2%) than judges disciplined for bias (0.5%). Judicial accountability was promoted when the 0.5% of judges who deviated from ethical guidelines were disqualified; what about the remaining 1.5% of judges? Of course, these judges might have just luckily evaded discipline for their bias. Discipline, unlike peremptory challenges, requires an investigation, not solely a mere allegation.²¹⁰ That being said, if the litigants and their attorneys truly thought their judge was biased, they could have complained to the Commission on Judicial Performance (at least anonymously) in order to avoid facing the same judge again.²¹¹

A disqualified judge’s age, race, and gender, among other characteristics, were not easily identifiable. However, the judge’s political leanings (determined by which political party they were registered for) were discoverable for 21 out of the 37 disqualified judges. Thirteen judges (62%) were Democrats, 7 judges (33%) were Republicans, and 1 judge (5%) was a Libertarian. This Note is committed to preserving these judges’ anonymity as they may understandably want to keep their politics confidential. Unfortunately, the distribution of party affiliation in the state judiciary was not readily ascertainable, but the total voter registration by political party provided some context—in 2021, 46.5% of voters were Democrats, and 24% of voters were Republican.²¹² The comparison is illustrated by Figure 3 below:

Figure 3.

The law does not and cannot cover every kind of situation, so judicial discretion in the interpretation of the law maintains the legal system. Accordingly, judicial disqualification must take into account the diversity of experiences and legal philosophies that make up the bench. Each judge should have opportunities to arbitrate cases; otherwise, caselaw will cease to think outside the box. Yet, the data reveals that 62% of the disqualified judges were registered Democrats, and 33% of those judges were registered Republicans. Granted, without knowing how many California judges in sum have a Democratic-party affiliation, this is weak evidence for party-affiliation bias. But it is at least some insight that may suggest at best discriminatory effects and at worst purposeful discrimination against Democrat judges—for not only criminal, but also civil cases.²¹³ If judges from a particular political party are systematically taken off matters through peremptory challenges, the judiciary becomes less representative. Consider how there are “persuasive correlations between the political party of the appointing authority and the judge’s decisions on certain issues,” according to an academic study of judicial decision-making.²¹⁴ Other group affiliations are also implicated: Black, Hispanic, and Asian voters are typically more liberal than conservative.²¹⁵

Of 37 disqualified judges, 33 of them had reviews on The Robing Room—a forum “by attorneys for attorneys” in which “judges are judged.”²¹⁶ Fifteen judicial profiles had at least 1 comment from or before 2021 that mentioned a Section 170.6 motion—all but 1 recommended a peremptory challenge. Out of the 32 comments urging others to use Section 170.6 (many of which listed more than one reason), only 15 comments (47%) complained of the judge’s bias. While 3 comments (9%) gave no reason at all, the remaining 17 comments cited explanations that did not concern bias: 17 (53%) for incompetence, 9 (28%) for unpleasant temperament, 4 (12.5%) for unnecessary delay, and 4 (12.5%) for disliked persons working in the judge’s chambers. Out of respect for these judges, their identities will remain anonymous, especially since the information is not necessary to this Note’s analytical aims. Figure 4 below demonstrates this distribution of motives:

Figure 4.

Section 170.6 blatantly spells out the one acceptable rationale for challenging the judge—bias. When litigants abuse their affidavit power against unbiased judges (that is, “judge shopping,” although the term does not quite capture the concept), they are admitting their search for a judge who will favor their side. The sample of comments from The Robing Room implies that Section 170.6 is not an obscure and hidden procedure. Rather, attorneys understand that they can peremptorily disqualify their judge through Section 170.6. Fifty-three percent of these comments recommending a challenge did not complain that the judge was biased. Admittedly, it is uncertain whether the litigants who challenged their judge in this study held the same beliefs as these reviewers or were influenced by these reviews in making their challenge. Though the data does not definitively prove that reasons outside of bias motivated these challenges, it still exposes what some practitioners think these challenges should be used for. Incompetence, unpleasant temperament, unnecessary delay, and disliked persons working in the judge’s chambers are undoubtedly serious problems, but they are problems that nevertheless affect both the plaintiff and defendant—there is no favoritism and therefore no bias. The duty of vigorous advocacy on behalf of the client is not a free pass for attorneys to bend the law to their will.

Besides The Robing Room, there were other published sources documenting criticism of the disqualified judges: circulating petitions for removal, judicial corruption activism pages, and news articles about their behavior in their private or public lives. One news outlet asked a disqualified judge about her alleged bias toward women to which she responded that there is probably an equally strong sentiment that she is biased toward men. Notably, the Commission on Judicial Performance publicly admonished one of the disqualified judges for improper conduct extraneous to bias.

There is arguably universal consensus that public confidence in the judiciary is of the utmost importance—the public needs assurance that they can rely on the courts for remedies to their legal grievances. The uproar against judges on the Internet (that is, the petitions, activism pages, news reports, and so forth) feeds the public impression that judicial independence is forgotten and left behind on the courthouse’s steps. Even if a judge’s attitudes on contentious issues in the legal and political community escape the public eye, the seemingly innocuous knowledge of the judge’s political-party registration can speak volumes given modern political polarization.²¹⁷ Republican litigants confronting Democrat judges may believe the “politicians in black robes” will unequivocally rule left, and vice versa for Democrat litigants. The perception of bias in the courts is disconnected from whether bias is actually rampant among judges.

IV. ALTERNATIVES TO CALIFORNIA’S JUDICIAL PEREMPTORY CHALLENGE

A. Existing Alternative Procedures

Despite an overall low risk of abuse, since judicial peremptory challenges are seemingly infrequent, there is little need for the challenge at all, at least in its current form. The empirical findings cast alternative approaches in a new light. This Note focuses on three ideas for compromise: the panel-exclusion approach, the interlocutory appeal approach, and the independent judge approach.

1. The Panel-Exclusion Approach

The panel-exclusion approach advocates the adoption of a procedure similar to that used in arbitration.²¹⁸ Litigants would anonymously exclude judges who are randomly placed on the case’s panel.²¹⁹ Unlike the challenge as it currently stands, court administrators would provide litigants with a “compilation of numerous exclusion decisions,” including rates, prior to any challenge, so litigants can make informed decisions without relying solely on “mistakes in individual cases.”²²⁰ This is an especially fruitful modification considering the overwhelming amount of unsolicited opinions and false stories online. Judicial analytics not only puts judges on notice about their inappropriate behavior and thus provides opportunities to cure such behavior, but also wins trust from the public by prioritizing transparency and honesty.

2. The Interlocutory Appeal Approach

A retired Associate Justice of the Arkansas Supreme Court admires Tennessee’s civil procedure in which “[t]he judge refusing to recuse, following a motion to do so accompanied by an affidavit, must enter an order stating his or her reasons for not recusing and any other pertinent information from the record for an immediate, interlocutory appeal to the Tennessee Court of Appeals, where that court will expedite and conduct a de novo review.”²²¹ Through the appeal, parties who failed to disqualify their judge would not have to endure a lengthy trial with an offended judge. Therefore, the challenge’s opponents might appreciate this third type of recourse before appeal of the entire case (joining review by a different judge, like the district’s chief judge, and mandamus review). The retired Associate Justice praises its efficacy in guarding judicial integrity and due process and urges Arkansas, a state where judges have discretion to deny disqualification motions without stating reasons, to follow suit.²²² His argument has merit in other jurisdictions with automatic disqualification, such as California, because appellate review will presumably lead to fewer judicial removals and prevent the public from falsely believing that there are more biased judges than is actually the case. The remedy provides no relief to litigants and attorneys who fear the insulted judge’s retaliation, but it should curtail judge shopping, especially on discriminatory grounds like race or gender, and minimize the odds of judicial intimidation. There is instinctive apprehension about crowding the appellate dockets, including the Supreme Court, but the Tennessee Administrative Office of the Courts—finding only ten or less appeals per year in a span of three years—and a Tennessee Court of Appeals judge—a “self-described ‘fan of the rule’ ”—calm these concerns.²²³ However, litigants lacking sufficient resources may not appeal even if their judge’s personal views have irreparably infected the proceeding.²²⁴

3. The Independent Judge Approach

Although his analysis revolves around a federal recusal statute’s reform, one legal scholar contributes a slightly different antidote to this dialogue. Another disinterested trial judge (that is, not the affected judge with a personal stake in the challenge) should rule on the disqualification motion because even the best-intentioned judge might be oblivious to their own faults. He further diverges from the affidavit procedure by suggesting that “the challenged judge be encouraged to file evidence refuting facts asserted in the recusal motion, and perhaps also an explanation of why disqualification is not justified,” so there is an “adversarial presentation of the issue.”²²⁵ Judges may worry about offending their colleagues,²²⁶ but given dissenting opinions and reversals of lower courts’ judgments, they are likely already accustomed to internal disagreement and can consequently stomach any potential discomfort.²²⁷ Additionally, he contends that “the appearance of justice will be better served, even if the actual rate of recusal remains unchanged.”²²⁸

B. The Proposed Alternative Procedure

A more promising solution is a hybrid model between the panel-exclusion approach (specifically, the dissemination of judicial analytics) and the independent judge approach. After litigants receive the exclusion decisions and rates, they can file the motion with a different trial judge who will review both the motion and the challenged judge’s evidentiary explanation for factual and legal sufficiency. An interlocutory appeal is rendered unnecessary if an independent judge can accurately filter for allegations that actually deserve a judicial peremptory challenge. Admittedly, like federal law, this is not peremptory per se, but it will hopefully further reduce the number of “uninformed, misinformed, [and] delusional”²²⁹ litigants who exercise the challenge.

As judges lack crisis managers, it is imperative that resources are invested into educating the public on judicial duties and verified statistics on judicial bias. Unlike news outlets, petitions, social media posts, and activism pages probably do not check the accuracy of the information they release. With the help of Big Data²³⁰ and artificial intelligence, judicial analytics will become more accurate over time, which will better alert litigants about the judges who are actually biased than other unverified sources. By making such information accessible, perhaps litigants will place less weight on factors like the judge’s race and gender, for example. The Robing Room states that slanderous comments posted in bad faith are subject to removal;²³¹ realistically, it can hardly stop all “sour grapes” who harbor disdain toward their judge for merely siding with the opposing party after fairly applying the law to the facts. Consider how one of the disqualified judges in the study asserted that there are an equal number of people who think she is biased toward either women or men. There is a possibility that the other sources noted in the study, besides the public admonishment, are campaigns by losing litigants to unjustifiably vilify their judge.

It seems problematic to allow judges to entertain motions petitioning their own disqualification, and the public agrees.²³² An independent adjudicator should handle the challenge, so the challenged judge does not have to awkwardly decide their own neutrality. It is a win-win situation—if the reviewing judge finds the challenged judge corrupted with partiality, then the public will trust that the judiciary is void of collusion, but if the reviewing judge deems the challenged judge unbiased, then the public will have faith in the judiciary’s independence, and the judge will be guarded from discrimination. Some argue that the challenged judge is ideal because they are closest to the alleged facts;²³³ this is precisely the issue. That said, the reviewing judge may have a connection to the challenged judge—for example, a friendship—that skews their decision in favor of a denial. Perhaps the reviewing judge should show that there is no personal relationship to the challenged judge, but at some point, judges have to be trusted to rule fairly.

In lieu of an automatic transfer, judges can defend their fitness to serve and expose the litigants who use bias as a pretense for prohibited reasons, like discrimination based on party affiliation. It is easy for Section 170.6 to act as a Trojan horse carrying ulterior motives because automatic reassignment is swiftly delivered following a quick evaluation of procedural adequacy. If judges have no chance to prove the allegations of bias wrong, these litigants unwittingly trigger an endless feedback loop in which their baseless challenges inflate the number of “biased” judges which, in turn, instigates more challenges. The expectation is that fewer than 1.5% of judges will encounter peremptory disqualification, closing the disparity between the number of disqualified judges and the number of judges disciplined for bias. This will then demonstrate to the public that judges are not always predisposed to bias. To play devil’s advocate, the public may feel disheartened upon witnessing too many judges found guilty of bias, but the judiciary should commit to their integrity and weed out the “10% problem,”²³⁴ the estimate of incompetent judges. Judges inevitably do not command from Olympian heights; rather, they are subject to their beliefs and attitudes. It is difficult to procure solid evidence of judges’ unconscious biases,²³⁵ but litigants should still explain what manifestations, whether inside or outside the courtroom, caused them to suspect such biases.²³⁶ They should not have free reign to judge shop due to a random feeling, especially in the U.S. legal system that is rooted in proof. Judicial economy is indeed lost if an inquiry is made into the merits as well,²³⁷ but it is a wiser alternative than the current framework that passively allows litigants to chase unequal justice.

V. RECOMMENDATIONS FOR FUTURE RESEARCH

Regrettably, without formal statistical methods to control for irrelevant factors, this Note is unable to confirm a causal relationship between a judge’s peremptory disqualification and any complaints of bias on their Robing Room profile. For the same reason, it is unknown if failed judicial peremptory challenges affected case outcomes (comparing the case in which the challenge was initiated to any future cases with the disqualified judge—this would have informed the policy debate on whether disqualified judges are truly hostile). Therefore, the first recommendation for future research is setting up a more sophisticated study in order to discover results beyond mere correlations. Another recommendation is conducting surveys directed to (1) the public asking about their impression of judicial bias,²³⁸ (2) judges asking about their various group affiliations (especially characteristics that are not available through public materials such as race and ethnicity, gender, and age), and (3) attorneys asking what resources they have at their disposal when deciding whether they should use Section 170.6. Since judicial disciplinary proceedings for bias may miss judges with more subtle manifestations of bias, one suggestion is to conduct an experiment²³⁹ testing how widespread conscious and unconscious biases are among superior court judges in California. Ideally, this Note would analyze the relationship between the type of case (for example, personal injury) and judge shopping; unfortunately, there were not enough free and accessible documents online. For this pursuit, as a judge’s area of professional expertise is easy to find, future researchers should investigate whether movants of a specific type of case are strategically challenging judges with or without experience in that practice area. Lastly, the challenge’s prevalence is a regional phenomenon in the United States, so studies conducted in other states are recommended as well.

CONCLUSION

Notwithstanding limitations, the empirical data reported in this Note has value—it discovered that judicial peremptory challenges were quite rare and therefore abuse from these challenges was not out of hand. Among the few filed motions, most were automatically granted, indicating that the procedural protections were a flimsier shield than the statute had planned. Juxtaposing the higher percentage of disqualified judges with the lower percentage of judges reprimanded for bias implies that litigants are alleging bias as a mere formality. This is further corroborated by the finding that more than half of the comments on The Robing Room recommending others to challenge a certain judge did not mention bias.²⁴⁰ In regard to discrimination, it found significantly more Democrat judges disqualified than Republican judges. Without additional research, this Note can only surmise about possible fixes to prevent discrimination, like the standard for employment law in which the judge’s ability to perform their duties must relate to the reasons for exclusion.²⁴¹ Whether the challenge can inherit AB 3070 (the 2020 law that “requir[es] an attorney exercising peremptory strikes to show clear and convincing evidence [under an objective standard] that [their] action is unrelated to that juror’s membership in a protected group or class”²⁴²) such that it is workable to judges poses an interesting question. Altogether, this Note concludes that there is not a serious risk of abuse from the challenge but Section 170.6 is still not a satisfactory remedy by legislation—there is no need to settle for less when there is a better solution. As Justice Kennedy wrote, judicial disqualification standards should extend beyond the minimum requirement of due process; however, they should not stretch so thin when judicial integrity is not completely broken. The proposed alternative will heal the issues produced when the challenge is granted as a matter of right by implementing an audit into the accusation’s truth. In other words, as a middle ground in the policy dichotomy, it will perfect the peremptory challenge and diminish the risk of abuse even more than the current model.

97 S. Cal. L. Rev. 253

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Sarah Park*

* Executive Senior Editor, Southern California Law Review, Volume 97; J.D. Candidate 2024, University of Southern California Gould School of Law; B.A. Communication 2019, University of California, Santa Barbara. Thank you to Professor Jonathan Barnett and Professor Robin Craig for serving as my advisors. To my family and friends—law school, much less this Note, would not be possible without your continuous support. I would also like to express my gratitude to the dedicated members of the Southern California Law Review for their hard work.

Judging Firearms Evidence

May 2024July 2024Brandon L. Garrett,* Eric Tucker† & Nicholas Scurich‡

Firearms violence results in hundreds of thousands of criminal investigations each year. To try to identify a culprit, firearms examiners seek to link fired shell casings or bullets from crime scene evidence to a particular firearm. The underlying assumption is that firearms impart unique marks on bullets and cartridge cases, and that trained examiners can identify these marks to determine which were fired by the same gun. For over a hundred years, firearms examiners have testified that they can conclusively identify the source of a bullet or cartridge case. In recent years, however, research scientists have called into question the validity and reliability of such testimony. Judges largely did not view such testimony with increased skepticism after the Supreme Court set out standards for screening expert evidence in Daubert v. Merrell Dow Pharmaceuticals, Inc. Instead, the surge in judicial rulings came more than a decade later, particularly after reports by scientists shed light on limitations of the evidence.

In this Article, we detail over a century of case law and examine how judges have engaged with the changing practice and scientific understanding of firearms comparison evidence. We first describe how judges initially viewed firearms comparison evidence skeptically and thought jurors capable of making firearms comparisons themselves—without an expert. Next, judges embraced the testimony of experts who offered more specific and aggressive claims, and the work spread nationally. Finally, we explore the modern era of firearms case law and research. Judges increasingly express skepticism and adopt a range of approaches to limit in-court testimony by firearms examiners.

In December 2023, Rule 702 of the Federal Rules of Evidence was amended, for the first time in over twenty years, specifically due to the Rules Committee’s concern with the quality of federal rulings regarding forensic evidence, as well as the failure to engage with the ways that forensic experts express conclusions in court. There is perhaps no area in which judges, especially federal judges, have been more active than in the area of firearms evidence. Thus, the judging of firearms evidence has central significance for the direction that scientific evidence gatekeeping may take under the revised Rule 702 in federal, and then state courts. We conclude by examining lessons regarding the gradual judicial shift toward a more scientific approach. The more-than-a-century-long arc of judicial review of firearms evidence in the United States suggests that, over time, scientific research can displace tradition and precedent to improve the quality of justice.

INTRODUCTION

On November 11, 2016, a police officer recovered a forty-caliber Smith & Wesson cartridge casing from the scene of a homicide in Washington D.C.¹ A police officer reported seeing a person discarding a Smith & Wesson semiautomatic pistol shortly after the homicide occurred.² Police sent a recovered cartridge casing to the crime lab where an examiner identified it—conclusively—“as having been fired” by the pistol recovered from the defendant,³ charged with first-degree murder.⁴ As the case approached trial, the defense challenged the admissibility of this proffered expert testimony, arguing it should be excluded because it was not the “product of reliable principles and methods.”⁵ In other words, the method lacked “scientific validity.” After hearing from several experts and reviewing published studies, Washington D.C. Superior Court Associate Judge Edelman found that there was insufficient evidence that firearms examiners can reliably make an identification.⁶ The judge ruled an expert could—at most—opine that “the recovered firearm cannot be excluded as the source of the cartridge casing found on the scene of the alleged shooting.”⁷ As we will describe, this is a powerful new limit on firearms evidence, a field in which experts have confidently concluded for decades that one and only one firearm—to the exclusion of all other firearms in the world—can produce the ammunition found at a given crime scene.⁸

While this case represented just one trial judge’s ruling, it not only forms a part of a sea change in judicial review of firearms evidence, but also the local repercussions point to more fundamental problems in our criminal system. Consider a later case before Judge Edelman, this one with charges brought against two men for two killings involving firearms evidence. Prosecutors were understandably concerned.⁹ In this case, D.C.’s Metropolitan Crime Lab had reported that the same weapon fired the cartridge casings found at each crime scene.¹⁰ Perhaps because they feared that the judge might view the evidence with renewed skepticism, the prosecutors took an unusual step: they asked independent examiners to take a look at the evidence.¹¹

The independent experts definitively concluded that two different firearms were involved—the opposite of what the D.C. crime lab examiners had concluded.¹² Internally, the lab examiners reexamined the evidence and agreed the cartridges came from different weapons. After meeting with lab managers, however, they instead reported an altered finding of “inconclusive,” meaning that no conclusion could be reached.¹³ The management notified the ANSI National Accreditation Board (“ANAB”), which accredited the lab, that an internal review resulted in an “inconclusive” finding, but the audit that followed found that the lab managers had acted to conceal the errors in the case.¹⁴ In April 2020, ANAB suspended the lab’s accreditation, and as a result, the lab was shut down.¹⁵ Prosecutors then opened a new probe into its firearms unit, the lab director resigned,¹⁶ the lab disbanded, and the firearms unit remains closed as of this writing.¹⁷

This rapidly unfolding crisis began with a spot-check in a single case prompted by a judge asking a fundamental question: How often do firearms examiners get it right versus wrong? For decades, few judges asked the question, but as we detail in this Article, judges have become increasingly engaged with the underlying science and have transformed a backwater area of forensic evidence into a subject of complex litigation. Indeed, in no other area have judges engaged in such a detailed manner with the limits of the testimony expressed by examiners—making firearms evidence the most prominent testing ground for the 2023 amendments to the Federal Rules of Evidence, designed to tighten judicial review of experts more generally, but with a focus on forensic evidence more specifically.¹⁸

Firearms examination is in great demand, with more than a hundred thousand requests for a forensic firearm examination each year in the United States.¹⁹ Firearms violence is a major problem in the United States—more than ten thousand homicides and almost five hundred thousand other crimes, such as robberies and assaults, are committed using firearms.²⁰ When conducting these comparisons, examiners seek to link crime scene evidence—such as spent cartridge casings or bullets—with a firearm. These examiners assume that the manufacturing processes used to cut, drill, and grind a gun leaves distinct and identifiable markings on the gun’s barrel, breech face, firing pin, and other components. When the firearm discharges, those components in turn contact the ammunition and leave marks on it. Experts have long assumed, as we will describe, that firearms leave distinct toolmarks on ammunition.²¹ They believe that they can definitively link spent ammunition to a particular firearm using these toolmarks.²² And for over a hundred years, examiners have offered criminal trial testimony relying on this assumption.²³

In recent years, the consequences of the uncritical judicial acceptance of firearms comparison testimony have come into sharper focus. Indeed, we now know that firearms evidence played a central role in numerous high-profile wrongful convictions. In the 2014 per curiam opinion in Hinton v. Alabama, for example, the U.S. Supreme Court reversed a conviction due to the defense lawyer’s inadequate performance in failing to develop firearms evidence at a capital murder trial.²⁴ The central evidence was a State Department of Forensic Sciences examiner’s conclusion that six bullets were fired from the same gun: “[T]he revolver found at Hinton’s house.”²⁵ The defense did not hire a competent and qualified expert, and the Court emphasized that “the only reasonable and available defense strategy require[d] consultation with experts or introduction of expert evidence.”²⁶ Hinton was subsequently exonerated, and he commented: “I shouldn’t have [sat] on death row for thirty years . . . . All they had to do was to test the gun.”²⁷

This Article presents the results of a comprehensive review of all judicial rulings in the United States concerning firearms comparison evidence. Our database of more than 300 judicial rulings is available as a resource online.²⁸ The database consists of written, published decisions (largely appellate opinions but also some trial rulings).²⁹ We describe the three-part story of the path of firearms evidence: (1) initial skepticism of a novel set of methods, then moving to; (2) national acceptance of increasingly powerfully stated conclusions regarding firearms; and finally (3) a surge in judicial opinions and skepticism of firearms comparison evidence that followed, not Daubert and the new reliability-focused standards for judicial review of scientific evidence, but rather a series of scathing reports by the scientific community calling into question the reliability of firearms evidence.

First, we describe how in the earliest cases, judges were actually quite skeptical of firearms comparison evidence, particularly when presented by self-styled experts, and often concluded that jurors were capable of making the comparisons themselves, without a need for expert testimony.³⁰ However, particularly due to the influence of the flamboyant Major Calvin Goddard and his disciples, courts gradually embraced the firearms comparison evidence as the subject of expert testimony.³¹

Second, we document how the claims made by experts became more specific and aggressive as the work spread nationally.³² Rather than simply describing a comparison between two sets of objects, firearms experts testified by making “uniqueness” claims: the theory that “no two firearms should produce the same microscopic features on bullets and cartridge cases such that they could be falsely identified as having been fired from the same firearm.”³³ By the 1960s, this expert testimony was offered and accepted across the country. Professional groups emerged and set standards for the field, which courts took note of. Written judicial opinions became quite uncommon, and any judicial skepticism was largely limited to more unusual applications of the methods rather than the underlying methodology itself.³⁴

Third, we explore the modern era of firearms case law and research, with increasingly intense judicial interest and written opinions on the topic in the last two decades.³⁵ In 1993, the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals³⁶ and, along with its progeny and the revision to Federal Rule of Evidence 702 (“Rule 702”) and state-law analogues, judges now bear clearer and more rigorous gatekeeping responsibilities to assess the reliability of scientific evidence.³⁷ Accompanying this shift in the courts, by the late 1990s, experts premised testimony on a “theory of identification” set out by a professional association, the Association of Firearms and Tool Mark Examiners (“AFTE”).³⁸ The AFTE instructs practitioners to use the phrase “source identification” to explain what they mean when they identify “sufficient agreement” of markings when examining bullets or cartridge cases.³⁹

In recent years, scientists have called into question the validity and reliability of this testimony—contributing to an explosion of judicial rulings. In a 2008 report, the National Academy of Sciences (“NAS”) found that “[t]he validity of the fundamental assumptions of uniqueness and reproducibility of firearms-related toolmarks has not yet been fully demonstrated.”⁴⁰ In its 2009 report, the NAS concluded “[s]ufficient studies have not been done to understand the reliability and repeatability of the methods.”⁴¹ The report also noted that “the lack of a precisely defined process . . . [that] does not even consider, let alone address, questions regarding variability, reliability, repeatability, or the number of correlations needed to achieve a given degree of confidence.”⁴² Over half of the judicial rulings that we identified have occurred since 2009, the year that the NAS issued its pathbreaking report. We detail dozens of opinions that have limited testimony of firearms experts in increasingly stringent ways.

Solidifying this trend, in 2016, the President’s Council of Advisors on Science and Technology (“PCAST”) reviewed in detail all of the firearm examiner studies that had been conducted to date,⁴³ finding, with only one deemed appropriately designed, that “the current evidence falls short of the scientific criteria for foundational validity.”⁴⁴ Most recently—beginning in the aforementioned 2019 case before Judge Edelman—scientists have testified about the research base of firearm examination.⁴⁵ These experts include psychologists, statisticians, and other academics with training in conducting science, rather than applying a forensic technique. As one judge put it, “[R]arely do the experts fall into such cognizable camps, forensic practitioners on one side and academic researchers on the other.”⁴⁶

The impact of these modern critiques on the admissibility of firearm examination has borne concrete results, but gradually. Comforted by more than a century of long-standing precedent, judges were slow to react to scientific concerns raised regarding firearms comparison evidence, even after the Daubert ruling. Yet in more recent years, as lawyers have increasingly litigated the findings of scientific reports and error rate studies, we have seen a dramatic rise in a judge’s willingness to engage with scientific limitations of the methods.⁴⁷ That said, most judges have responded by imposing limits on how experts phrase conclusions in testimony, but we note there are reasons to doubt that this compromise solution will sufficiently inform lay jurors of the limits of the method.⁴⁸

For the first time since 2000, Federal Rule of Evidence 702 was amended, as of December 1, 2023.⁴⁹ The Advisory Committee notes emphasize that these revisions are “especially pertinent” to forensic evidence.⁵⁰ Further, for forensic pattern-comparison methods like firearms evidence, the committee noted that opinions “must be limited to those inferences that can reasonably be drawn from a reliable application of the principles and methods.”⁵¹ The amended Rule 702 specifically directs judges to (1) more carefully consider that the proponent of an expert bears the burden to show that the various reliability requirements are met and (2) underscore that the opinions that the expert formed are reliably supported by the application of the methods to the data.⁵² The rule changes squarely address the issues that judges have grappled with in the area of firearms evidence, perhaps more prominently than in any other area of scientific evidence. The rule changes target the two main concerns that judges have raised: the reliability of the methods and the overstatement of conclusions.

Thus, the body of case law regarding firearms evidence may only grow, and it may be a harbinger for how judges will engage with scientific evidence more broadly after the rule change. In a 2023 ruling, the Supreme Court of Maryland ruled that an expert can only opine on whether spent bullets or cartridges are “consistent or inconsistent” with those known to have been fired by a particular weapon.⁵³ In perhaps a sign of things to come, a trial judge in Cook County, Illinois recently excluded firearms expert testimony entirely, based on scientific concerns with reliability, after conducting an extensive evidentiary hearing. There, the judge concluded that the probative value of the evidence was a “big zero” and raised the concern of “yet another wrongful conviction” based on such evidence if the jurors viewed “[t]he combination of scary weapons, spent bullets, and death pictures without even a minimal connection” to expertise that is repeatable and reproducible.⁵⁴

These developments more fundamentally suggest that for judges and lawyers to carefully engage with the reliability rules set out in Daubert and in Rule 702, it takes engagement by the scientific community. Prominent scientific reports and studies have helped judges and lawyers apply scientific criteria to firearms examinations. The result has limited unsupported use of these firearms comparisons and may promote better methods in the future that can prevent errors and wrongful convictions.⁵⁵ The changes to Rule 702 can cement these developments and ensure more careful review of scientific expert evidence more broadly. We conclude by examining the lessons to be learned from this more-than-a-century-long arc of judicial review of firearms evidence in the United States for future judicial engagement with science.

I. FIREARMS METHODS AND THE FIRST HALF-CENTURY OF JUDICIAL RULINGS

In this Part, we begin by describing the basic approach used by firearms and toolmark examiners. The approach has been in use for over a hundred years, and its origins trace to a single pioneering examiner, Major Calvin H. Goddard, who powerfully transformed courts’ early skepticism toward firearms comparison evidence to near-universal acceptance.⁵⁶ Considered the “father” of modern forensic firearms examination, Goddard assembled databases of information from gun makers and pioneered a “comparison microscope,” a device with side-by-side eyepieces, to make comparing firearms evidence more convenient.⁵⁷ While quite primitive compared with modern technology, Goddard introduced the use of the microscope in firearms comparison, which was seen as permitting a level of sophisticated visual analysis that a layperson lacked access to. We describe how, in the 1930s, Goddard often testified in trials about the comparison microscope, further cementing the method’s legitimacy to courts. Over time, other practitioners and crime laboratories adopted similar methods and began to testify as experts. We describe in this Part what reasoning courts used through the 1930s as they moved from early skepticism to acceptance of this expert testimony.

A. A Primer on Firearm and Toolmark Identification

Toolmark identification is the practice of human observers opining on whether toolmarks were produced by a particular tool.⁵⁸ A tool is considered any device that serves a mechanical purpose (for example, screwdrivers, pliers, knives, pipe wrenches). As the tool contacts softer material, it sometimes leaves marks on the softer object’s surface. The resulting marks are called “toolmarks.”⁵⁹ A firearm consists of many tools that perform mechanical functions to fire a bullet. Therefore, firearm identification is considered a subspecialty of toolmark identification.⁶⁰ The goal of firearm identification is to determine whether two bullets or cartridge cases were fired by the same firearm.

Firearm identification typically involves the examination of features or marks on either bullets or cartridge cases. A piece of unfired ammunition contains four components: (1) a cartridge case, (2) a primer, (3) propellant (gun powder), and (4) a bullet. The cartridge case holds the unit of ammunition together with the bullet in its mouth. When an individual pulls the trigger of a firearm, a firing pin strikes the primer, which is at the head of the cartridge case. Striking the primer creates a spark that ignites the propellant. The ignition of the propellant forces the bullet to detach from the cartridge case and exit the barrel of the firearm. All of these operations have the potential to impart marks on the cartridge case, on the bullet, or on both. For example, manufacturers use firing pins with different shapes, which are often readily apparent on a fired cartridge case. Similarly, the barrel of the gun has grooves machined into it to impart a spiral spin on the bullet (akin to a football spiral)—some manufactures have different numbers and directions of grooves.

Practitioners call these types of features “class characteristics.”⁶¹ Class characteristics are the result of design features selected by the manufacturer. For example, a manufacturer may choose to use an elliptical-shaped firing pin or a barrel with six right-hand twisting grooves. The ammunition’s size is also a class characteristic. Class characteristics are a useful first step in firearm examination since observing differences in class characteristics can immediately rule out the possibility that two bullets or cartridge cases were fired by the same gun.

Agreement in class characteristics alone, however, is not sufficient to determine that bullets or cartridge cases were fired by the same gun. To draw that inference, examiners must identify and evaluate “individual characteristics,” which are defined by the AFTE as:

Marks produced by the random imperfections or irregularities of tool surfaces. These random imperfections or irregularities are produced incidental to manufacture and/or caused by use, corrosion, or damage. They are unique to that tool to the practical exclusion of all other tools.⁶²

Examiners rely on training and experience to assess whether striations are uniquely the result of a particular firearm (in other words, individual characteristics), as opposed to incidental striations that occurred during production and may be apparent in many different firearms of the same class.⁶³ Examiners following the AFTE protocol can reach one of several conclusions based on their evaluation of the individual characteristics: identification, elimination, inconclusive, or unsuitable for comparison.

There are no numeric thresholds for how many individual characteristics must be observed before the examiner can declare that two bullets or cartridge cases were fired by the same gun (that is, “an identification”). Rather, the AFTE protocol states that an identification can be reached “when the unique surface contours of two toolmarks are in ‘sufficient agreement.’ ”⁶⁴ As defined by the AFTE:

This “sufficient agreement” is related to the significant duplication of random toolmarks as evidenced by the correspondence of a pattern or combination of patterns of surface contours. . . . The statement that “sufficient agreement” exists between two toolmarks means that the agreement of individual characteristics is of a quantity and quality that the likelihood another tool could have made the mark is so remote as to be considered a practical impossibility.⁶⁵

This criterion of “sufficient agreement” has been roundly criticized by numerous commentators and courts for being “circular.”⁶⁶ It is, however, the criterion adopted by the AFTE and widely used by practicing firearm examiners who conduct casework.⁶⁷

B. The Reception of Firearms Experts in U.S. Courts: 1902–1930

While there is increasingly voluminous scholarship regarding the early origins of gun control in the United States, we are not aware of scholarship exploring the early use of experts seeking to link firearms to particular shootings.⁶⁸ In this Section, we detail what we learned from assembling our database of firearms rulings, collected using searches of legal databases and supplemented with unpublished trial court orders where available.⁶⁹ As we will describe, twenty-nine of the earliest rulings predated Frye v. United States, a 1923 case that formed the basis for the federal standard for judicial review of novel expert evidence: a requirement of “general acceptance” within the relevant scientific community.⁷⁰ Further, none of the eleven rulings decided from 1923–1930 cited to Frye—we did not see courts relying on the Frye standard until many decades later. Many of these rulings, absent clear rules of evidence concerning expert testimony, instead focused on whether experts could assist or inform the jury.⁷¹ The earliest rulings date back to the 1870s and they were quite mixed on whether it was erroneous or correct to have admitted expert testimony concerning firearms.⁷²

One of earliest reported cases discussing firearms comparison evidence, Commonwealth v. Best,⁷³ was written in 1902 by none other than Oliver Wendell Holmes, then the Chief Justice of the Massachusetts Supreme Judicial Court. Best was convicted of murder, and on appeal, argued that certain firearms comparison evidence offered at the trial was erroneous.⁷⁴ The State argued at trial that Best shot a milkman twice with a Winchester rifle found in Best’s kitchen.⁷⁵ To prove this, the State fired a third bullet through the gun, took a photograph of it, and published photographs of this bullet and the bullets found in the victim’s body as evidence.⁷⁶

In conjunction with these photographs, the State called an expert witness to “testif[y] that [the bullets] were marked by rust in the same way that they would have been if they had been fired through the rifle at the farm, and that it took at least several months for the rust that he saw in the rifle to form.”⁷⁷ In other words, the bullets found at the crime scene were rusted only because they were fired through the rusty barrel of Best’s rifle.⁷⁸ Best’s counsel argued—at trial and on appeal—that the evidence was inadmissible because “the conditions of the experiment did not correspond accurately with those of the date of the shooting,” that “the force impelling the different bullets were different in kind,” that “the rifle barrel might be supposed to have rusted more in the little more than a fortnight that had intervened, and that it was fired three times on [the murder date], which would have increased the leading of the barrel.”⁷⁹ To wit: environmental factors called the expert’s conclusion into question.

In his quintessentially succinct style, Justice Holmes swiftly disposed of these arguments, concluding that expert testimony was the only way “the jury could have learned so intelligently how that gun barrel would have marked a lead bullet fired through it,” and “the sources of error suggested were trifling.”⁸⁰ Indeed, despite this being one of the first published opinions that we could find on the admissibility of firearms toolmark evidence, Justice Holmes found “no reason to doubt that the testimony was properly admitted.”⁸¹ Rejecting the other arguments that Best made on appeal, the court upheld the conviction.⁸²

On the West Coast, two years later, the California Supreme Court decided People v. Weber, a 1906 case that also involved crude firearms comparison evidence. Four members of the Weber family had been killed on their property, three from gunshots and one from blunt force trauma.⁸³ Police found a .32-caliber revolver in the basement of the Weber barn with dried blood on it, along with five discarded cartridges.⁸⁴ The defendant was tried and convicted of one of the murders, and he appealed.⁸⁵ During the trial, the State called “an expert in small arms” who testified that he “compared the markings on the bullets taken from the bodies with the markings on the bullets which he had fired from the pistol,” concluding that these bullets were all fired from the alleged murder weapon.⁸⁶ While the trial court initially admitted this testimony, the next day, the court struck it, concluding “the comparison of the . . . bullets . . . is not a matter of expert testimony, but one within the ordinary capacities of the average juror or citizen.”⁸⁷ Thus, the testimony was excluded, but the bullets were all admitted into evidence for the jury to compare during deliberations. On appeal, the California Supreme Court did not disturb the trial court’s ruling, but it did reject the defense’s argument that admitting the bullets into evidence was erroneous.⁸⁸ The court instead held that admitting the evidence to help the jury identify the murder weapon “was pertinent and important.”⁸⁹

In the 1920s, courts gradually moved toward considering firearms examiners as expert witnesses. In State v. Clark,⁹⁰ the Oregon Supreme Court considered a criminal appeal of a manslaughter conviction. Charles Taylor, a worker in Oregon’s National Cascade Forest Reserve, was part of a group assigned to bridge maintenance. Each worker brought a .30-30 Winchester rifle, hoping to hunt “camp meat.”⁹¹ One night, Clark and Taylor began hunting, and each fired an initial shot so they could use the spent cartridges as communication whistles.⁹² Taylor then left to hunt, but he was never seen alive again. The subsequent search party found a shell near Taylor’s body and an empty shell in the barrel of Taylor’s gun.⁹³ According to the court, both shells “bore on the brass part of the primer a peculiar mark evidently caused by a flaw in the breechblock of the gun from which they had been fired.”⁹⁴ This design flaw “caused a very slight, almost microscopic protuberance in the primer of the shell, which enlarged photographs ma[de] very clear to the naked eye.”⁹⁵ Law enforcement fired several shots from Clark’s gun, and the cartridges produced the same mark.⁹⁶ Additionally, Clark’s gun created a “sort of double scratch” on the inside of the rim of each shell fired, while Taylor’s gun “made only a single scratch.”⁹⁷ Because of this, the court eliminated “the theory that deceased might have been accidentally shot with his own gun.”⁹⁸ The court held these tests had produced “strong evidence that [Clark] was present and fired the shot that killed Taylor.”⁹⁹ This evidence was presented in trial by the sheriff who described the marks but does not appear to have made more specific conclusions.¹⁰⁰ Clark’s counsel objected to this testimony and admission of the photographs, but no specific reason for the objection was provided¹⁰¹—unsurprising because rules surrounding lay and expert witnesses were less formal in this era. The court held that the testimony was proper and the evidence was admissible.¹⁰²

In a 1922 case, the Alabama Supreme Court explicitly held—unlike in the cases discussed so far—that firearms comparison examiners could testify as expert witnesses.¹⁰³ A person was convicted for killing a man and his dog via gunshot.¹⁰⁴ Police had found a revolver near the victim’s body and the revolver had one cartridge in the chamber that had been discharged.¹⁰⁵ The State called someone “familiar with such things, [who] had used pistols and shells a good deal,” to testify as an expert.¹⁰⁶ This expert claimed the casing in the empty chamber and the barrel of the revolver demonstrated it “had not been discharged recently.”¹⁰⁷ The defense unsuccessfully objected, arguing that the person was not an expert.¹⁰⁸ On appeal, the Alabama Supreme Court upheld the testimony: “A witness may have expert knowledge of some of the more ordinary affairs of life.”¹⁰⁹

In a 1923 case, however, the Illinois Supreme Court powerfully objected to expert evidence on firearms comparison.¹¹⁰ The court reversed the conviction on appeal for multiple reasons,¹¹¹ but it particularly took issue with the State’s use of a police officer as an expert. At trial, a police officer testified for the State that a gun in evidence was the one fired at the victim because it “was the identical revolver from which the bullet introduced in evidence was fired on the night [the victim] was shot.”¹¹² The officer was “asked to examine the Colt automatic .32 aforesaid, and gave it as his opinion that the bullet introduced in evidence was fired from the Colt automatic revolver in evidence.”¹¹³ The court emphasized:

He even stated positively that he knew that that bullet came out of the barrel of that revolver, because the rifling marks on the bullet fitted into the rifling of the revolver in question, and that the markings on that particular bullet were peculiar, because they came clear up on the steel of the bullet.¹¹⁴

The court elaborated:

The evidence of this officer is clearly absurd, besides not being based upon any known rule that would make it admissible. If the real facts were brought out, it would undoubtedly show that all Colt revolvers of the same model and of the same caliber are rifled precisely in the same manner, and the statement that one can know that a certain bullet was fired out of a 32-caliber revolver, when there are hundreds and perhaps thousands of others rifled in precisely the same manner and of precisely the same character, is preposterous.¹¹⁵

Finally, the court focused on lay versus expert opinions:

Mere opportunity does not change an ordinary observer into an expert, and special skill does not entitle a witness to give an opinion, when the subject is one where the opinion of an ordinary observer is admissible, or where the jury are capable of forming their own conclusions from the pertinent facts susceptible of proof in common form. . . . If any facts pertaining to the gun and its rifling existed by which such fact could be known, it would have been proper for the witness to have stated such facts and let the jury draw their own conclusions.¹¹⁶

The court thus strongly rejected admitting an expert to opine on such firearms evidence.¹¹⁷

By the late 1920s, however, judicial rulings began to shift as the work of Major Goddard became more known. Goddard founded a private crime laboratory—“The Bureau of Forensic Ballistics”¹¹⁸—and published the American Journal of Police Science. Goddard became particularly well-known for assisting with the investigation in the Sacco and Vanzetti case in Massachusetts and in the St. Valentine’s Day Massacre in Chicago in 1929.¹¹⁹ Before Goddard published his seminal article on ballistic evidence for the U.S. Army in 1925, Forensic Ballistics, many judges, as described above, viewed firearms comparison as a crude technique that jurors could conduct themselves by visually examining the evidence.¹²⁰

This began to change. For example, in a 1928 Kentucky case, Jack v. Commonwealth, the state supreme court discussed firearms comparison testimony and found the evidence “important if competent, but highly prejudicial if incompetent.”¹²¹ The court discussed an article by Major Goddard in Popular Science Monthly¹²² and summarized the process:

[T]here is in use a special microscope consisting of two barrels so arranged that both are brought together in one eyepiece. The fatal bullet is placed under one of these barrels, and a test bullet that has been fired through defendant’s pistol is placed under the other barrel, and this brings the sides of the two bullets together and causes them to fuse into one object. If the grooves and other distinguishing marks on both bullets correspond, it is said to show that both balls were fired from the same pistol.¹²³

The court concluded:

It thus appears that this is a technical subject, and in order to give an expert opinion thereon a witness should have made a special study of the subject and have suitable instruments and equipment to make proper test . . . . Clearly the witnesses in this case were not qualified to give such opinions and conclusions and the admission of such evidence was erroneous and prejudicial.¹²⁴

The court therefore rejected the testimony not because it doubted the method itself but because the proffered experts did not follow proper practices.

One year after Jack, the Kentucky Supreme Court again examined firearms comparison testimony in Evans v. Commonwealth.¹²⁵ The defendant, Evans, was indicted for murder of the Pineville, Kentucky chief of police, and he was ultimately convicted of manslaughter.¹²⁶ Six shots were fired in the murder, and police had dug up a bullet from the ground near the scene.¹²⁷ Evans’s primary argument on appeal was that firearms comparison evidence was improper, so the court addressed it “with some degree of elaboration.”¹²⁸ The court referenced Jack and noted that one month after Jack was published, Major Goddard—who wrote the article referenced by the court in Jack—offered to testify.¹²⁹ Goddard was given the defendant’s automatic .45 pistol, seven cartridges taken from this pistol, six cartridges found at the scene of the crime, and the bullet that police had taken from the dirt.¹³⁰ Goddard concluded “that he was convinced that the bullet that had been introduced into evidence had been fired through [Evans’s] pistol.”¹³¹ To justify this conclusion, Goddard gave a detailed account of how he compared the different bullets by putting “the two bullets under the two microscopes together, [so that] in the center . . . you see a single bullet. . . . [I]f these bullets were fired through the same pistol they will match . . . .”¹³² Goddard testified that he “only required one single test to identify the bullet in evidence as having been fired through the Evans pistol.”¹³³

During Goddard’s cross-examination, the jury was allowed to examine the evidence using the microscope.¹³⁴ The defense objected that Goddard’s conclusion was one of fact that the jury should instead determine.¹³⁵ The court rejected this argument.¹³⁶ Interestingly, the court concluded that Goddard’s opinion was an ordinary lay opinion, not that of an expert.¹³⁷ Cross-examination was thus a sufficient safeguard, and “rigid adherence” to the rules of evidence “would be subversive of the ends for which they were adopted.”¹³⁸ The defense also objected to the jury looking through the microscopes which the court quickly dismissed as without “well-founded reason.”¹³⁹

These two Kentucky Supreme Court opinions formed the framework for the modern approach to firearms comparison evidence. Jack demonstrates that courts would not always let a specific person testify as a qualified expert on firearms comparison. But Evans shows that the courts were not concerned about the underlying validity of the methodology of firearms comparisons. If the State could produce a witness in the mold of Major Goddard, following the now-respected comparison microscope methodology, then the testimony would routinely be admitted.

C. A National Body of Firearms Rulings: 1930s to 1960s

Beginning in the 1930s, judges began to further develop case law in other parts of the country, with new experts testifying. We identified forty rulings from 1931–1970, each set out in our database. During this time period, rulings spread nationally, as judges appear powerfully influenced by Evans,¹⁴⁰ which became one of the lodestar cases for adoption of firearms comparison evidence. Use of toolmark evidence for firearms comparison began to be called “accepted” and “well-recognized” as a methodology. As time went on, judges simply cited to Evans and other prototypical early cases to admit expert testimony, and discussion of the merits of firearms comparison methods diminished. Further, defendants increasingly did not challenge the evidence but rather focused on the preservation of evidence or the qualifications of the testifying experts. These challenges were almost always unsuccessful.

In 1937, for example, the Florida Supreme Court briefly concluded that a firearms comparison expert was “fully qualified to testify as an expert . . . and to draw a reliable conclusion as to whether or not the bullet found in the body of the deceased was fired from the pistol introduced in evidence.”¹⁴¹ In another Missouri case, the expert himself explained that he “was not a ballistic expert,” but he still argued he had “much experience in the work of identifying firearms.”¹⁴² Despite this concession, the court concluded that “he was an expert in the identification of firearms and bullets by the comparison method by means of a microscope.”¹⁴³ In 1938, an Oklahoma appellate court further explained:

There were few decisions with reference to the introduction of expert testimony to identify the weapon from which a shot was fired until recent years, but the science of ballistics is now recognized as one of the best methods in ferreting out crime that could not otherwise be detected. Expert evidence to identify the weapon from which a shot was fired is generally admitted under the rules covering other forms of expert testimony, and it is the modern tendency of the courts to allow the introduction of such testimony, where the witness’ preparation as shown by experience and training qualifies him to give expert opinion on firearms and ballistics tests.¹⁴⁴

By 1940, experts could cite fifteen years of experience in “the firing of different caliber pistols,” which was enough to qualify a person as a firearms comparison expert.¹⁴⁵ In a 1941 case in Virginia, an expert from the FBI testified that he had twenty years of experience, “six of which had been devoted to the examination of firearms.”¹⁴⁶ The expert testified that the cartridge he examined was fired by the defendant’s shotgun.¹⁴⁷ The reviewing court cited to Evans,¹⁴⁸ as courts continued to do. For example, in State v. McKeever,¹⁴⁹ the expert testified this was his 191st trial—the court allowed the evidence to be admitted without discussion, simply citing to Evans.¹⁵⁰ Increasingly brief opinions found “no error” in introduction of such testimony.¹⁵¹

There were some outliers. For example, a 1948 New Mexico Supreme Court ruling reversed the admissibility of “ballistic expert” testimony, which allegedly matched a specific gun to the bullet that killed the victim.¹⁵² After being qualified, the expert testified about his methodology, calling the firearm’s marks “absolutely identical.”¹⁵³ The court was concerned that the expert had concluded with statements such as: “I will state positively that the evidence bullet (death bullet) was fired out of State’s Exhibit No. 2, this [defendant’s] gun.”¹⁵⁴ The court emphasized that while firearms comparison is “almost, if not an exact science,” and “judicial notice may be taken” of the method, ballistic experts still must, “like . . . experts generally,” only provide “opinion testimony.”¹⁵⁵ While “[i]t may be true that such witnesses as Colonel Goddard, who testified in Evans v. Commonwealth and other reported cases, are so skilled in the science of forensic ballistics that the chance of error is negligible,” they are the exception.¹⁵⁶ Yet, “[t]he belief of a witness that his skill is so transcendent that an error in judgment is impossible, may itself be false or a mistake, assuming that the science is exact.”¹⁵⁷

In a rare 1951 Georgia Supreme Court case, Henderson v. State, the court excluded firearms comparison testimony due to concerns with the specific expert. The defense attorney asked the expert “why he did not measure the distance and depth of the grooves, and the witness explained by giving the reply that the microscope was the highest and best evidence.”¹⁵⁸ The court held that the answer was not a “response to the question propounded,”¹⁵⁹ that the right to a “thorough and sifting cross-examination” was violated, and that the judgement should be reversed for a new trial.¹⁶⁰

In a Maryland case, the defendant also attacked the State’s firearms comparison testimony.¹⁶¹ The court emphatically rejected this position:

For many years ballistics has been a science of great value in ferreting out crimes that otherwise might not be solved. When a pistol is fired, a pressure is developed within the shell which drives the bullet out of the barrel, and the shell is driven back against the breech of the pistol with similar force. The markings on the hard breech of the pistol are thereby stamped on the soft butt of the shell. Testimony to identify the weapon from which a shot was fired is admissible where it is shown that the witness offering such testimony is qualified by training and experience to give expert opinion on firearms and ammunition.¹⁶²

The court cited back to Best and Evans to justify this result, despite the faint marks and acknowledgment that the marks could have been explained by a different type of weapon.¹⁶³

In a 1964 Florida case, the court provided the following explanation about the recognition of firearms comparison testimony:

It is now well established that a witness, who qualifies as an expert in the science of ballistics, may identify a gun from which a particular bullet was fired by comparing the markings on that bullet with those on a test bullet fired by the witness through the suspect gun. An expert will be permitted to submit his opinion based on such an experiment conducted by him. The details of the experiment should be described to the jury.¹⁶⁴

Finally, a 1969 Illinois appellate case offers some of the earliest descriptions of class and individual characteristics, the predominant terminology in modern firearms comparison testimony:

When a weapon is received at the laboratory it is classified as to type, caliber, make and model. Each gun has class characteristics common to its particular make and model. In addition, each gun has its own individual characteristics. . . . After the gun is received at the laboratory, if operable, it is fired into a bullet recovery box. The bullet in question is then compared with the test bullet under a comparison microscope.¹⁶⁵

During this time, courts routinely rejected challenges to firearms experts’ qualifications.¹⁶⁶ And expert qualifications only increased: by now, some experts testified that they had worked on “approximately three to four thousand cases of ballistics.”¹⁶⁷ Judicial review of forensic evidence in the following decades involved significant deference, with trial courts deferring to the expert witnesses, and then the appellate courts deferring to the trial courts. Often, courts focused on the specific examiner’s experience rather than assessing the field’s foundational validity.¹⁶⁸

D. Pre-Daubert Cases

In the 1970s and 1980s, leading up to the Daubert ruling in 1993, courts routinely admitted firearms expert testimony, often without discussion.¹⁶⁹ We located only twenty-four such rulings, perhaps because unpublished rulings became far more common given the broader acceptance of such expert testimony. While challenges to expert qualifications typically failed—with courts citing to the experience of the examiner—courts generally expected examiners to also possess specialized training and credentials.¹⁷⁰

Some courts excluded firearms testimony based on other issues.¹⁷¹ In a federal case, the defendant was denied access to an expert to examine the evidence and testimony, which was found particularly problematic given the quality of the evidence itself, as “seventy-five percent of this slug was destroyed and the identification was made on the remaining 25%.”¹⁷² Other cases relied on the Confrontation Clause, including one in which a police officer testified about a report by an examiner who was not present at trial.¹⁷³ Still other courts considered whether experts sufficiently described their work.¹⁷⁴

In general, experts continued to reach highly aggressive conclusions that were permitted by courts. For example, the expert in a 1981 Wyoming case resolved, “The markings on the bullets from the home of appellant’s brother matched the markings found on the bullet removed from [the defendant], establishing that they had been fired from the same gun.”¹⁷⁵ In a leading Virginia case, an expert testified he was “certain” one of the bullets removed from the victim’s body was fired from the defendant’s pistol, and there was “no margin of error.”¹⁷⁶ The defendant argued on appeal that this “no margin of error” statement was impermissible.¹⁷⁷ The court rejected this argument, simply concluding that the statement went toward the weight of the testimony, not its admissibility.¹⁷⁸

Pre-Daubert, some defendants did contest whether firearms experts relied on sufficient facts and data. In an exemplar Utah case, the expert testified at a preliminary hearing that a bullet fired from the alleged murder weapon matched a bullet taken from the victim’s body.¹⁷⁹ But while he gave this conclusion, he was not able to give “an exact description of the striations, nor did he have photographs of them available with him in court.”¹⁸⁰ The court rejected arguments that the expert did not have sufficient foundation for his conclusion, holding that the testimony was within the expert’s specialized knowledge.¹⁸¹

II. MODERN SCIENTIFIC ASSESSMENTS AND GROWING JUDICIAL SKEPTICISM OF FIREARMS EVIDENCE

Following the U.S. Supreme Court’s ruling in 1993 in Daubert v. Merrell Dow Pharmaceuticals, Inc., federal courts began to more carefully scrutinize firearms evidence, although exclusion remained rare.¹⁸² Daubert led to the revision of Federal Rule of Evidence 702 in 2000 that established new standards to assess the reliability of scientific expert testimony. Many of the defendants’ objections shifted from concerns about the experts’ qualifications to concerns about the reliability of the methodology and conclusions,¹⁸³ and about the use of inadmissible hearsay evidence as a basis for the experts’ conclusions.¹⁸⁴ At the state level, there was not any immediate difference in how courts approached firearms expert testimony post-Daubert; methodology and expert qualifications were more explicitly mentioned, but the overall analysis largely remained the same.¹⁸⁵

In the late 1990s and early 2000s, courts began rejecting expert firearms comparison testimony as unreliable, largely by relying on Daubert. In our database, we include just seven cases from 1993–2000. However, the number of rulings begins to dramatically increase after 2000, with 188 rulings from 2000 to 2022. We turn next to that rich body of modern case law.

Figure 1. Reported U.S. Firearms Rulings by Decade

Figure 1 illustrates this remarkable trend—one can see a fairly steady number of twenty or fewer reported judicial rulings regarding firearms comparison evidence through the 1990s. Yet, beginning in the early 2000s, these rulings began to dramatically increase in number.

The Supreme Court in Daubert revolutionized judicial review of scientific evidence by setting out five factors for courts to consider in evaluating expert testimony: whether the theory or technique relied on (1) can be (and has been) tested, (2) has been subjected to peer review and publication, (3) has a known or potential rate of error, (4) includes the existence and maintenance of standards controlling its operation, and (5) is generally accepted within the relevant scientific community.¹⁸⁶ We provide an overview of each factor and how courts generally have reviewed them in the context of firearms comparison testimony.

First, courts generally have not questioned the “testability” of firearms forensics, a “key question” when examining reliability.¹⁸⁷ A series of courts have held that the propositions that “firearms leave discernible toolmarks on bullets and cartridge casings fired from them, and that trained examiners can conduct comparisons to determine whether a particular gun has fired particular ammunition . . . can be, and have been, tested.”¹⁸⁸

Second, many courts have determined the AFTE method of toolmark identification has been subject to sufficient peer review and publication, largely through the AFTE Journal.¹⁸⁹ However, courts are beginning to more rigorously inspect the validity of the peer review process at that journal. Prior to January 2020, the AFTE Journal used a highly unusual “open-review” process whereby the identities of the authors and the reviewers were disclosed and direct communication was encouraged. Furthermore, all of the reviewers were members of AFTE who “ha[d] a vested, career-based interest in publishing studies that validate their own field and methodologies.”¹⁹⁰ These factors led a D.C. Superior Court judge to conclude in 2019: “[T]he vast majority of [firearms comparison] studies are published in a journal that uses a flawed and suspect review process, [which] greatly reduces its value as a scientific publication.”¹⁹¹ Therefore, the peer review factor “on its own does not, despite the sheer number of studies conducted and published, work strongly in favor of admission of firearms and toolmark identification testimony.”¹⁹² Nevertheless, courts have cited to other studies or reports to validate the soundness of toolmark comparison—one federal court curiously cited to the 2009 NAS and 2016 PCAST reports as evidence of peer review, despite how damning those reviews are of the method.¹⁹³

Third, courts have tended to view the error rate for forensics firearms testing as low, though they also sometimes acknowledge that the error rate is “presently unknown.”¹⁹⁴ One federal court concluded that “it is not possible” to calculate an absolute error rate for firearms analysis because “the process is so subjective and qualitative.”¹⁹⁵ This third factor is particularly important for rigorous assessment because “an expert witness’s ability to explain the methodology’s error rate—in other words, to describe the limitations of her conclusion—is essential to the jury’s ability to appropriately weigh the probative value of such testimony.”¹⁹⁶ Faced with numerous studies purporting extremely low error rates, many courts have simply accepted the validity of these conclusions that forensics firearms testing does have a nominal error rate¹⁹⁷ or has “a false positive rate of 1.52%.”¹⁹⁸

In more recent years, as we discuss in a later Section in more detail, courts have begun to reexamine the validity of the error studies and rates presented.¹⁹⁹ Citing basic design flaws of most studies in the field and the studies’ failure to address a large number of “inconclusive” results, one court, for example, found “it difficult to conclude that the existing studies provide a sufficient basis to accept the low error rates for the discipline that these studies purport to establish.”²⁰⁰ Other courts noted concerns with the lack of rigorous testing but did not find this sufficiently persuasive to exclude the evidence outright.²⁰¹

Fourth, many judges have focused on how the AFTE methodology lacks clearly defined, objective standards. Judges have variously described the AFTE method as “inherently vague,”²⁰² “more of a description of the process of firearm identification rather than a strictly followed charter for the field,”²⁰³ and “merely unconstrained subjectivity masquerading as objectivity.”²⁰⁴ And as many courts have pointed out, “the AFTE standard is circular—an identification can be made upon sufficient agreement, and agreement is sufficient when an identification can be made.”²⁰⁵ The inherent subjectivity has weighed against admissibility of firearms comparison evidence for many courts.²⁰⁶ Courts, however, have often also noted that they find such subjectivity “not fatal” to admissibility.²⁰⁷ Thus, courts often note that subjectivity alone does not make a method unreliable and they are focused on evaluating reliability.²⁰⁸

Finally, the last Daubert factor hinges on general acceptance within the relevant scientific community. Who constitutes the “relevant” scientific community has never been defined with precision, yet it is often determinative. Because the AFTE method is accepted within the organization’s own community of firearms examiners, courts frequently find the requisite general acceptance.²⁰⁹ But other judges have pointed out that this narrow definition is comprised exclusively of individuals “whose professional standing and financial livelihoods depend on the challenged discipline.”²¹⁰ Thus, perhaps the relevant scientific community should be broadened to include nonpractitioner research scientists.

While acknowledging the discipline’s weaknesses, most federal courts have balanced the Daubert factors and found testimony admissible. As one federal court put it: “[T]his lack of objective criteria is countered by the method’s relatively low rate of error, widespread acceptance in the scientific community, testability, and frequent publication in scientific journals.”²¹¹ Further, as noted, Rule 702 was revised in 2000 to incorporate Daubert, but it specified additional factors, including asking courts to examine the application of a method to the facts in a case.²¹² Courts vary in whether they simply consider Daubert factors alone,²¹³ or whether they also discuss Rule 702—as will be discussed next, litigants have increasingly focused on the as-applied language in Rule 702, critiquing how the method was used, as well as on the language an expert used to express conclusions.

A. Post-Daubert Cases

As a federal district court noted in 2005, for over a decade after the Daubert ruling, “every single court post-Daubert has admitted [firearms identification] testimony, sometimes without any searching review, much less a hearing.”²¹⁴ When courts did examine firearms evidence, early post-Daubert challenges often focused on if the expert’s qualifications were sufficient under Rule 702,²¹⁵ even if they did begin to discuss questions regarding reliability of methods and principles used.²¹⁶ Further cases discussed—and rejected—the question of whether an expert’s conclusions were based on inadmissible hearsay, rather than their own observations and conclusions.²¹⁷ And many courts, both state and federal, continued to admit the testimony without serious discussion.²¹⁸

In additional cases, judges dismissed objections to firearms experts whose testimony was said to reach “ultimate issues,” with the judges noting that the experts only opined regarding an acceptable “reasonable scientific certainty.”²¹⁹ Thus, judges have emphasized the flexibility of the Daubert and Kumho Tire²²⁰ standards. As a Southern District of New York ruling explained:

The Court has not conducted a survey, but it can only imagine the number of convictions that have been based, in part, on expert testimony regarding the match of a particular bullet to a gun seized from a defendant or his apartment. It is the Court’s view that the Supreme Court’s decisions in Daubert and Kumho Tire, did not call this entire field of expert analysis into question. It is extremely unlikely that a juror would have the same experience and ability to match two or more microscopic images of bullets.²²¹

B. Growing Judicial Skepticism

The federal courts took the lead in beginning to scrutinize firearms comparison testimony more closely. Judges began to write opinions with detailed examinations of the underlying methods experts used. Federal courts then imposed partial exclusions regarding either (1) the methods or qualifications of the particular experts or (2) the language the expert was permitted to use to describe the conclusion. In more recent years, state courts, including trial courts, have joined federal courts in asking more detailed questions and limiting uses of firearms expert testimony.

A turning point was the District of Massachusetts ruling in United States v. Green.²²² Then-judge Gertner described that the firearms expert had planned to testify about individual characteristics which the expert stated could be matched “to the exclusion of every other firearm in the world.”²²³ At the opinion’s outset, the court stated that this conclusion was “extraordinary.”²²⁴ The court also gave one of the earliest detailed descriptions of the exactness—or lack thereof—of the toolmark comparison methodology:

In firearm toolmark comparisons, exact matches are rare. The examiner has to exercise his judgment as to which marks are unique to the weapon in question, and which are not.

In fact, shell casings have myriad markings, some of which appear on all casings from the same type of weapon (“class characteristics”) or those manufactured at the same time (“sub-class characteristics”). Others are arguably unique to a given weapon (“individual characteristics”) or are unique to a single firing (“accidental characteristics”).²²⁵

Judge Gertner then explained:

The task of telling them apart is not an easy one. Even if the marks on all of the casings are the same, this does not necessarily mean they came from the same gun. Similar marks could reflect class or sub-class characteristics, which would define large numbers of guns manufactured by a given company. Just because the marks on the casings are different does not mean that they came from different guns. Repeated firings from the same weapon, particularly over a long period of time, could produce different marks as a result of wear or simply by accident.²²⁶

Judge Gertner emphasized that in “distinguishing class and sub-class characteristics from individual ones,” the examiner “conceded, over and over again, that he relied mainly on his subjective judgment. There were no reference materials of any specificity, no national or even local database on which he relied.”²²⁷ Despite these concerns, the court candidly acknowledged that “the problem for the defense is that every single court post-Daubert has admitted this testimony, sometimes without any searching review, much less a hearing.”²²⁸ Judge Gertner ultimately allowed the expert testimony because “any other decision [would] be rejected by appellate courts, in light of precedents across the country.”²²⁹ Nevertheless, the court did not “allow [the expert] to conclude that the match he found by dint of the specific methodology he used permits ‘the exclusion of all other guns’ as the source of the shell casings.”²³⁰

In a second Massachusetts case, United States v. Monteiro, Judge Gertner next held—for the first time—that firearms comparison evidence was inadmissible on an as-applied challenge under Rule 702.²³¹ Because of “the extensive documentary record,” the court held that the “underlying scientific principle behind firearm identification—that firearms transfer unique toolmarks to spent cartridge cases—is valid under Daubert.”²³² At the same time, Judge Gertner noted that the “process of deciding that a cartridge case was fired by a particular gun is based primarily on a visual inspection” that is “largely a subjective determination.”²³³ Because of this subjectivity, a testifying examiner must “follow the established standards for intellectual rigor in the toolmark identification field with respect to documentation of the reasons for concluding there is a match (including, where appropriate, diagrams, photographs or written descriptions), and peer review of the results by another trained examiner in the laboratory.”²³⁴ Ultimately, the court concluded that even though the methodology could be reliable and even though the examiner was qualified based on his training and experience, the expert’s opinion was inadmissible because the expert did not sufficiently comply with proper peer review and documentation requirements.²³⁵

Other federal courts began to follow the approach of Judge Gertner. The Northern District of California in 2007 held that an expert could only testify to a “reasonable degree of certainty in the ballistics field.”²³⁶ But the court commented:

[I]t is important to note that—at least according to this record—there has never been a single documented decision in the United States where an incorrect firearms identification was used to convict a defendant. This is not to say that examiners do not make mistakes. The record demonstrates that examiners make mistakes even on proficiency tests. But, in view of the thousands of criminal defendants who have had an incentive to challenge firearms examiners’ conclusions, it is significant that defendants cite no false-positive identification used against a criminal defendant in any American jurisdiction.²³⁷

Other federal courts, however, instead continued to admit conclusions given with “100% degree[s] of certainty.”²³⁸ The next shift occurred after the scientific community produced substantial reports raising new reliability questions.

C. The 2008, 2009, and 2016 Scientific Reports

Over half of the rulings in our database occurred after 2009 when the National Academy of Sciences released a groundbreaking report concerning forensic evidence. To be sure, commercial legal databases may have a greater concentration of more recent appellate rulings. But one might have expected a similar outpouring of judicial rulings after the Daubert ruling in 1993—a fairly modern opinion. Instead, we observe change following an intervention by the scientific community over a decade and a half later.

During this time, the separate field of comparative bullet lead analyses—in which examiners claimed to use chemistry to identify unique elemental makeup of a bullet—was discredited and abandoned by the FBI after the NAS found it lacked any scientific foundation.²³⁹ The NAS is “a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare.”²⁴⁰ Indeed, even before the report, courts had begun to exclude such evidence.²⁴¹ While it was a very different discipline, those developments may have raised further concerns in the judiciary regarding the work of firearms examiners.

In a 2008 report focused on the feasibility of a national ballistic imaging database, the NAS concluded that underlying assumptions of firearms comparisons were not yet validated.²⁴² Furthermore, “a significant amount of research” would need to be done to determine what characteristics might allow one to determine a probative connection between pieces of firearms evidence.²⁴³

In 2009, the NAS released its landmark report, Strengthening Forensic Science in the United States, after Congress directed NAS to undertake the study recognizing that substantial improvements were needed in the field of forensic science.²⁴⁴ The 2009 NAS Report contains a scientific assessment of a variety of forensic science disciplines along with recommendations for improvements in each discipline and to the forensic system as a whole. The Committee assembled by the NAS included prominent forensic scientists, research scientists, lawyers, and judges.²⁴⁵ The Report identified a wide range of methodological issues with the practices of forensic firearm and toolmark identification.

Although the NAS Report did acknowledge that class characteristics are helpful in narrowing the pool of firearms that may have fired a particular bullet or cartridge case, it recognized that firearm examiners necessarily go beyond class characteristics when making an identification. The Report noted that a “fundamental problem with toolmark and firearms analysis is the lack of a precisely defined process”²⁴⁶ and that the AFTE methodology “does not even consider, let alone address, questions regarding variability, reliability, repeatability, or the number of correlations needed to achieve a given degree of confidence.”²⁴⁷ The Report concluded that “[b]ecause not enough is known about the variabilities among individual tools and guns, [firearm examiners are] not able to specify how many points of similarity are necessary for a given level of confidence in the result.”²⁴⁸

Building on this work by the NAS, the 2016 President’s Council of Advisors on Science and Technology (“PCAST”) published its 2016 report on the use of forensic science in criminal proceedings. The report was a response to President Obama’s question “whether there [we]re additional steps on the scientific side, [in addition to those identified in the 2009 NAS Report], that could help ensure the validity of forensic evidence used in the Nation’s legal system.”²⁴⁹ The advisory group consisted of “leading scientists and engineers, appointed by the President to augment the science and technology advice available to him from inside the White House, and from cabinet departments and from other Federal agencies.”²⁵⁰ The group focused on six feature-comparison methods including firearms-comparison evidence.²⁵¹

Consulting with forensic scientists, PCAST reviewed more than two thousand studies from various disciplines.²⁵² The field had responded to the NAS reports by conducting new studies, and PCAST undertook a deep examination of them. As the NAS had done in its 2009 Report, PCAST asked whether each discipline met basic requirements for scientific validity, which consists of both “foundational validity”—whether the method can, in principle, be reliable—and “validity as applied”—whether the method has been reliably applied in practice.²⁵³

To be foundationally valid, a method must have been subject to “empirical testing by multiple groups, under conditions appropriate to its intended use.”²⁵⁴ Specifically, “the procedures that comprise it must be shown, based on empirical studies, to be repeatable, reproducible, and accurate, at levels that have been measured and are appropriate to the intended application.”²⁵⁵ The studies must also provide “valid estimates of the method’s accuracy,” demonstrating how often an examiner is likely to draw the wrong conclusion even when applying the method correctly (that is, a scientifically valid error rate).²⁵⁶ As PCAST explained, “Without appropriate estimates of [the method’s] accuracy, an examiner’s statement that two samples are similar—or even indistinguishable—is scientifically meaningless: it has no probative value, and considerable potential for prejudicial impact.”²⁵⁷

Ultimately, as described below, PCAST concluded that all but one of the existing studies did not use appropriate designs to truly test the ability of a firearm examiner to make accurate identifications. PCAST went on to conclude that “[b]ecause there has been only a single appropriately designed study, the current evidence falls short of the scientific criteria for foundational validity.”²⁵⁸ Much like the NAS report that preceded it, PCAST pointed to the necessity for additional, appropriately designed studies to test the validity of firearm examination.²⁵⁹

1. Evaluation of the Scientific Studies

PCAST divided the firearms identification studies it reviewed into two different types: set-to-set studies and sample-to-sample studies. In a set-to-set study, examiners are given two sets of bullets and then asked to link the first set of bullets to the second set of bullets. In a sample-to-sample study, examiners are given two bullets to compare and are asked to judge whether the bullets were fired by the same gun or not. This process is then repeated for other test sets of bullets. PCAST concluded that “set-based studies are not appropriately-designed black-box studies from which one can obtain proper estimates of accuracy.”²⁶⁰

The principal problem of set-to-set studies is that test takers can leverage the design to gain inferences about other comparisons, making the task totally unlike real-world comparison work.²⁶¹ For example, if an examiner identifies a match between bullets one and two, and then determines that bullet one and bullet A match, then bullet two and bullet A must also be a match by implication. Thus, a test taker would get a correct response for linking unknown bullet two to known bullet A despite never directly comparing the bullets. PCAST noted that: “[t]he Director of the Defense Forensic Science Center analogized set-based studies to solving a ‘Sudoku’ puzzle, where initial answers can be used to help fill in subsequent answers.”²⁶² Because of this, set-to-set studies typically yield errors rates of zero and very few inconclusive responses.²⁶³

At the time PCAST conducted its analysis, there was only a single sample-to-sample study available for firearms identification. The unpublished study was conducted by researchers at the Ames Laboratory in Iowa.²⁶⁴ In this first Ames Lab study, 218 firearm examiners were mailed a test packet that contained cartridge cases to examine. Each test packet totaled 15 separate comparisons for the examiners to evaluate. Unbeknown to the participants, 10 of the comparisons were different-source comparisons, for which the correct response was elimination, and 5 were same-source comparisons, for which the correct response was identification. Examiners were instructed to work alone on the test and to follow the AFTE protocol.

The study reported a 1.01% false positive error rate.²⁶⁵ What was not stated explicitly in the study is that 33.7% of the responses were deemed inconclusive—a pattern of results wildly at odds with the results from the set-to-set studies.²⁶⁶ PCAST noted that “the closed-set studies show a dramatically lower rate of inconclusive examinations and of false positives. With this unusual design, examiners succeed in answering all questions and achieve essentially perfect scores. In the more realistic open designs, these rates are much higher.”²⁶⁷

One federal district court, in extensively discussing the PCAST report findings, noted, “Based on the above information, the court finds that the potential rate of error for matching ballistics evidence based on the AFTE Theory does not favor a finding of reliability at this time.”²⁶⁸ The court noted, however, that the FBI and the Ames Laboratory were “currently conducting a second black box study on the AFTE Theory.”²⁶⁹ That study was posted online in early 2021 (and subsequently removed from the Internet).²⁷⁰

The FBI/Ames Laboratory study (hereinafter “Ames II”) utilized a design ambitious in size and scope. First, the study contained both cartridge case and bullet comparisons. The vast majority of previous firearms comparison studies examined only cartridge cases. Second, the study consisted of three rounds that attempted to measure accuracy (round one), repeatability (round two), and reproducibility (round three). Repeatability refers to “the ability of an examiner, when confronted with the exact same comparison once again, to reach the same determination as when first examined.”²⁷¹ Reproducibility refers to “the ability of a second examiner to evaluate a set previously viewed by a different examiner and reach the same conclusion.”²⁷² No other study had attempted to measure repeatability and reproducibility of firearm examiner judgments.

In round one of the study, 256 active firearm examiners were sent test packets—each test packet contained 15 comparison sets of bullets and 15 comparison sets of cartridge cases. For each comparison, participants were instructed to make a judgement according to the AFTE Range of Conclusions.²⁷³ Participants were admonished not to discuss their results with anyone else. However, only 173 participants out of 256 returned their test packets. According to the authors, “the overall rate of false positive error rate was estimated as 0.656% and 0.933% for bullets and cartridge cases, respectively, while the rate of false‐negatives was estimated as 2.87% and 1.87% for bullets and cartridge cases, respectively.”²⁷⁴ Here again, there was an enormous amount of inconclusive responses: over 50% of the bullet comparisons were deemed inconclusive, and over 42% of the cartridge comparisons were deemed inconclusive.²⁷⁵

In round two of the study, participants were sent the same test packet they examined previously. Only 105 participants completed this round.²⁷⁶ The percentage of time that examiners reached the same conclusion in round one and round two ranged from 79% to 62%.²⁷⁷ This does not necessarily mean the examiner reached the correct conclusion about two-thirds of the time; rather, it only suggests she reached the same conclusion about two-thirds of the time. According to the authors, a statistical test comparing the “observed agreement” between conclusions reached in round one and in round two to the “expected agreement” “indicat[ed] ‘better than chance’ repeatability.”²⁷⁸ However, two different statisticians concluded that: “[t]he level of repeatability and reproducibility as measured by the between rounds consistency of conclusions would not appear to support the reliability of firearms examination.”²⁷⁹

Only 80 participants completed round three of the study.²⁸⁰ The percentage of time that 2 different participants examined the same test set and reached the same conclusion ranged from 68% to 31%.²⁸¹ These latter results are striking. Less than one-third of the time, 2 different participants looked at the same bullets and reached the same conclusion. This means that over two-thirds of the time (69.1%), 2 different participants reached different conclusions when examining the same set of bullets. A statistical test revealed “better than chance” agreement for same-source bullet comparisons but not different-source bullet comparisons.²⁸²

D. Litigating the Error Rate Studies

The conclusion reached by PCAST that “firearms analysis currently falls short of the criteria for foundational validity”²⁸³ did not go unnoticed by the defense bar. Admissibility challenges to firearm examiner testimony surged—we include more than eighty such cases in our database.²⁸⁴ These challenges often summarized the PCAST analyses and conclusions in arguing that the field failed to pass Daubert’s muster. These challenges, however, almost universally failed. Critics of PCAST sought to characterize the report as authored by outsiders who failed to learn the fundamentals of firearm examination and who committed numerous errors in their own analysis.²⁸⁵ But the tides have recently begun to shift, as courts imposed new, albeit still limited, restrictions on the type of testimony firearm examiners may offer and how they express conclusions.²⁸⁶ We have identified thirty-seven judicial rulings imposing limitations on firearms comparison testimony and set out each in Appendix A.

Two factors have contributed to the shifting tides. First, in addition to citing the NAS and PCAST reports, attorneys have called mainstream research scientists to testify generally about scientific methods and principles and specifically about the discipline of firearm examination. These experts are not firearm examiners and typically have never conducted a firearm examination.²⁸⁷ Much like the practitioner/researcher distinction in medicine, these experts are researchers who study whether the methods employed by the practitioners are effective. These experts are poised to evaluate claims made in court regarding scientific practices.²⁸⁸

The second major factor concerns additional examination of the PCAST-reviewed studies that potentially undermine the reported error rates and the utility of the validation studies. As noted, one-third of the responses in the Ames I study were inconclusive.²⁸⁹

What ought to be done with those responses? PCAST ultimately calculated the error rate without considering them. Other firearm studies actually count inconclusive responses as correct responses, based on the logic that “an inconclusive response is not an incorrect response [so they are] totaled with the correct response and figured into the error rate as such.”²⁹⁰ But what if those responses are errors? The error rate would be as high as 35% in the Ames I study. Other sample-to-sample studies conducted after the PCAST analyses have reported rates of inconclusive responses over 50%.²⁹¹ Clearly, determining how to count over half of the responses in a validation study is critical.

There are many legitimate reasons to count the inconclusive responses in the Ames I study, including the fact that “[t]he fraction of samples reported as inconclusive cannot be attributed to a large fraction of poorly marked knowns or questioned samples in this group”²⁹² and an inconclusive response is also defined by AFTE as an absence of insufficient quality of marking to reach an identification or elimination.²⁹³ As noted in a 2020 scientific article, a proper study design would include inconclusive test items so that inconclusive responses could be evaluated and incorporated into the error rate.²⁹⁴ No study has yet done so and, as a result, error rates observed in the studies span a range so large as to be wholly unhelpful—anywhere from one percent to over fifty percent, depending on whether the responses are dropped or considered as erroneous. Thus, as one district court recently put it,

But providing examiners in the study setting the option to essentially “pass” on a question, when the reality is that there is a correct answer—the casing either was or was not fired from the reference firearm—fundamentally undermines the study’s analysis of the methodology’s foundational validity and that of the error rate.²⁹⁵

This crucial issue of inconclusive responses was never considered prior to Tibbs, discussed earlier in this Article,²⁹⁶ in which a defense expert raised the concern during an admissibility hearing. The judge in Tibbs called it “perhaps [the] most substantial issue related to the studies proffered to support the reliability of firearms and toolmark analysis”²⁹⁷ and noted that “the methods used in the proffered laboratory studies make a compelling case that inconclusive should not be accepted as a correct answer in these studies.”²⁹⁸ To be sure, in one 2020 Washington, D.C. case, a judge discounted those findings for which no defense expert was presented to explain these error rate issues.²⁹⁹

Then again, another 2020 case in Oregon limited the admissibility of firearms testimony without the benefit of a defense expert witness.³⁰⁰ This judge expressed major concerns about inconclusive responses in firearms comparison studies and their impact on reported error rates:

It appears to be the case that the only way to do poorly on a test of the AFTE method is to record a false positive. There seems to be no real negative consequence for reaching an answer of inconclusive. Since the test takers know this, and know they are being tested, it at least incentivizes a rate of false positives that is lower than real world results. This may mean the error rate is lower from testing than in real world examinations.³⁰¹

A litany of other concerns besides the inconclusive response issue have been raised about the error rate studies. We mention four important issues here.

First, and most fundamentally, none of the studies were test-blind—the participants knew that they were being tested. There is powerful evidence that human subjects are predictably biased—and behave differently—when they know that they are being tested. The PCAST report emphasized the need for blind testing of forensic techniques.³⁰² So have a host of researchers based on a large body of research documenting the manner in which cognitive biases can lead forensic examiners to make errors.³⁰³ Although blind testing is standard in medicine, it has never been standard in error rate studies in forensics.

Second, many of the volunteer participants in both of the Ames studies simply dropped out or participated but did not complete the test. In the Ames II study, “32% of the 256 examiners receiving their first packets failed to report any results, and another 32% of the 256 dropped out before completing all six mailings.”³⁰⁴ No analysis of the participants who initiated the study but declined to complete it was conducted.³⁰⁵ Attrition bias due to nonrandom dropout is a serious concern that has an unknown impact on the reported error rates. Although one court has noted that the “use of volunteers . . . does not provide the clearest indication of the accuracy of the conclusions that would be reached by average toolmark examiners,”³⁰⁶ courts have not focused on issues related to participant dropout.

Third, there are also questions about whether the materials being used in the studies, such as the types of firearms and the quality of the fired items, are sufficiently representative to draw inferences about the field writ large. By design, studies should be of varying degrees of difficulty, but unfortunately, “[w]ith a few exceptions, each of the forensic firearms studies to date focuses on a single firearm,” and the exceptions are telling, whereas studies that use different types of firearms have resulted in very different error rates for each type.³⁰⁷ Further, if in a study, “an examiner is over and over comparing bullets or cartridge cases from the same brand and model, then he or she can be expected to be picking up nuances along the way. A later comparison will have an advantage over the first. We can expect this to lead to a reduction in sample error rates.”³⁰⁸ Unlike other forensic identification fields, none of these studies have used technology or databases to ensure the test items are challenging.³⁰⁹ Nor has there been any careful analysis of how representative or challenging these studies are, and this basic problem has not received the judicial attention that it should.

Finally, judges have not focused on the appalling levels of nonrepeatability and nonreproducibility of firearms work in the Ames II study: “[E]xaminers examining the same material twice, disagree[d] with themselves between 20% and 40% of the time.”³¹⁰ They disagreed with other examiners even more, up to 69% of the time for nonmatching bullets and up to 60% of the time for nonmatching cartridges.³¹¹ Although there is spirited debate about inconclusive results and whether or not they constitute errors in a study, these rates of intra- and interparticipant consistency should eclipse that entire discourse—they set a limit on validity and cannot be dismissed as a disagreement about the interpretation of inconclusive responses. Yet, likely because Daubert explicitly mentions error rates, not rates of consistency, courts have yet to grapple with these findings and how they can be reconciled with professed error rates of one percent or less.

All of this said, it is not uncommon for judges to respond to these studies, the PCAST report, and critiques from research scientists dismissively. Judges have commonly relied on precedent to make conflated arguments against the invalidity of the studies. For example, one judge in New York state—a Frye jurisdiction where the standard for expert evidence admissibility is the “general acceptance” of the method within the relevant scientific community—recently emphasized that the acceptance of firearms comparison methods within the community of practitioners is “nearly universal”³¹² and that “the Appellate Division . . . has repeatedly upheld the admission of ballistics expert testimony without the need for a Frye hearing.”³¹³ But the judge then went on to hold that “the PCAST report has been thoroughly discredited”³¹⁴ and the “the very type of study called for by PCAST—a ‘black box study’—has, since the time of the PCAST report, been repeatedly utilized to validate firearm and toolmark comparison methodology.”³¹⁵ There was no engagement with the results of those studies or their limitations. Unfortunately, it is common for judges to rely on precedent as a form of “general acceptance” by the courts and not carefully examine the reliability of scientific evidence.³¹⁶

E. Testimonial Limitations and Post-NAS and PCAST Rulings

In recent years, courts have more rigorously evaluated the field of firearms examination, in contrast to over fifty years in which claims made by firearm examiners regarding the foundational validity were uncritically accepted.³¹⁷ These more searching evaluations have led judges to note limitations and knowledge gaps that had rarely been discussed in judicial opinions. Despite increasing awareness of the limitations of the field, almost all courts have nevertheless found it admissible.³¹⁸ This created a new conundrum for courts: how to admit firearms identification evidence in a way that does not overstate its value or cause the fact finder to be misled. In the Sections that follow, we report the four tacks that courts have taken when admitting firearm examination evidence: (1) limiting the language that experts can use when testifying to their conclusions, (2) limiting conclusions to class characteristics only, (3) ruling that evidence concerning the proficiency of firearms experts is relevant to the preliminary question whether to qualify the expert, and (4) examining the as-applied question whether the method was reliably used in the particular case.

1. Limiting Conclusion Testimony

While many courts have continued to admit firearms examiner testimony, “[m]any of these courts admitted the proffered testimony only under limiting instruction restricting the degree of certainty to which firearm and toolmark identification specialists may express their identifications.”³¹⁹ The case law that has resulted is diverse, sometimes inconsistent, and reflects a gradual evolution of judicial approaches. As we will describe, in general, a range of courts have limited testimony based on the concerns about toolmark identification methodology.³²⁰

The earlier decisions had held that an examiner could only testify to a milder degree, forbidding aggressive statements of a match, “the exclusion of all other firearms in the world,”³²¹ and instead imposing a more cautious formulation, such as a “reasonable degree of ballistic certainty.”³²² Other courts have taken a different approach, using more familiar standards of proof as a frame of reference—courts have ruled that the examiner can only opine that it is “more likely than not” that the bullet recovered from the crime scene came from the defendant’s firearm.”³²³ The table below summarizes some of the main approaches that courts have taken toward limiting such testimonial conclusions. Appendix A summarizes all thirty-seven opinions that we have located, through 2022, including unpublished trial court rulings.

Table 1. Testimonial Limitations on Firearms Examiners
Court-ordered Conclusion Language	Citations from selected examples
“more likely than not”	United States v. Glynn, 578 F. Supp. 2d 567 (S.D.N.Y. 2008)
“reasonable degree of ballistic certainty”	United States v. Monteiro, 407 F. Supp. 2d 351 (D. Mass. 2006)
“consistent with”	United States v. Sutton, No. 2018 CF1 009709 (D.C. Super. Ct. May 9, 2022)
“a complete restriction on the characterization of certainty”	United States v. Willock, 696 F. Supp. 2d 536 (D. Md. 2010)
“the recovered firearm cannot be excluded as the source of the cartridge casing found on the scene of the alleged shooting”	United States v. Tibbs, No. 2016 CF1 19431, 2019 D.C. Super. LEXIS 9 (D.C. Super. Ct. Sept. 5, 2019); Missouri v. Goodwin-Bey, No. 1531-CR00555-01 (Mo. Cir. Ct. Dec. 16, 2016)
“qualitative opinions” can only be offered on the significance of “class characteristics”	People v. Ross, 129 N.Y.S.3d 629 (N.Y. Sup. Ct. 2020)

The approach toward firearms testimony has evolved over the past two decades. The consensus approach, early on, was shared by a series of courts that adopted the formulation, “a reasonable degree of ballistic certainty.”³²⁴ Thus, the court in Diaz allowed the examiner to testify “that cartridge cases or bullets were fired from a particular firearm ‘to a reasonable degree of ballistic certainty,’ ” as did a series of other federal courts.³²⁵ In Monteiro, the district court ruled that the examiner could testify that the “class characteristics were in complete agreement,” but aside from observing that consistency, to a “reasonable degree of ballistic certainty,” no further probabilistic statement could be offered.³²⁶ The court reasoned, “Allowing the firearms examiner to testify to a reasonable degree of ballistic certainty permits the expert to offer her findings, but does not allow her to say more than is currently justified by the prevailing methodology.”³²⁷

It is not clear what a reasonable degree of certainty consists of—as a result, the U.S. Department of Justice has barred examiners in federal cases from using that or similar terminology:³²⁸

An examiner shall not assert that two toolmarks originated from the same source with absolute or 100% certainty, or use the expressions ‘reasonable degree of scientific certainty,’ ‘reasonable scientific certainty,’ or similar assertions of reasonable certainty in either reports or testimony unless required to do so by a judge or applicable law.³²⁹

The Department also barred examiners from making assertions of a “zero error rate” or infallibility.³³⁰ Those requirements marked a real charge from prior practice.

Second, during this time, some judges, like the Department of Justice itself, began to focus on the probabilistic claims by experts and limited toolmark experts’ testimony about conclusions that claim infallibility or the lack of any error rate—courts rejected assertions of zero error rates.³³¹ Thus, courts rejected assertions of being “100% sure” or “certain.”³³² In Monteiro, the judge rejected the use of the phrase “a match to an exact statistical certainty.”³³³ Similarly, in United States v. Gardner, the judge held that the opinion could not be made with “unqualified” certainty.³³⁴

A growing group of judges then offered intermediate approaches. Another District of Columbia judge held that an expert can testify that ammunition is “consistent with” being fired from the same firearm.³³⁵ The district court in United States v. Shipp ordered that the expert “may not testify, to any degree of certainty, that the recovered firearm is the source of the recovered bullet fragment or the recovered shell casing.”³³⁶ That court carefully examined the findings of the PCAST Report, and while it did not permit characterization of the level of certainty, the examiner could offer a statement of consistency.³³⁷ Other courts have taken this approach.³³⁸

Going further to limit the testimony, in more recent cases, judges have barred any certainty-based statements at all. Thus, in the Tibbs ruling, the court held that the examiner could not offer any probability that the firearm in question could be included, but only that “the recovered firearm cannot be excluded as the source of the cartridge casing found on the scene of the alleged shooting.”³³⁹ In the Goodwin-Bey³⁴⁰ ruling, the trial court did the same.³⁴¹ In United States v. Willock, the district judge ordered “a complete restriction on the characterization of certainty.”³⁴² Other courts have taken the same approach.³⁴³ Still other cases permitted the examiner to point to features and their similarities but not describe any level of agreement or consistency.³⁴⁴

None of these approaches adopt the approach of the American Statistical Association, which explains that to assert any degree of probability of an event, an established statistical basis must exist for that asserted degree of probability.³⁴⁵ Under this approach, an expert must be clear that no such statistical basis exists if none does exist.

The opinion that has gone farthest of all, however, is one of the most recent, a so-far unpublished opinion in 2023 by a trial judge in Cook County, Illinois. As noted, the judge wholly excluded firearms expert testimony, based on a review of scientific concerns with reliability.³⁴⁶

2. Limiting Non-Class-Based Opinions

Some jurisdictions under both Daubert and Frye have limited testimony to opinions offered on class characteristics only.³⁴⁷ That is, an expert can explain that the same type of gun fired the bullets or cartridge cases, but the expert cannot say that the same gun fired the bullets or cartridge cases. For example, here is the limiting instruction given by one federal judge who restricted the testimony to class characteristics:

[Firearm examiner’s] expert testimony is limited to the following observational evidence: (1) the Taurus pistol recovered in the crawlspace of [defendant’s] home is a 40 caliber, semi-automatic pistol with a hemispheric-tipped firing pin, barrel with six lands/grooves and right twist; (2) that the casings test fired from the Taurus showed 40 caliber, hemispheric firing pin impression; (3) the casings seized from outside the shooting scene were 40 caliber, with hemispheric firing pin impressions; and (4) the bullet recovered from gold Oldsmobile at the scene of the shooting were 40/l0mm caliber, with six lands/groves and a right twist.³⁴⁸

Courts have reasoned that descriptions of class characteristics are objective and measurable, whereas linking bullets to a particular gun is not “the product of a scientific inquiry,”³⁴⁹ and “any opinion based in unproven science and expressed in subjective terms such as ‘sufficient agreement’ or ‘consistent with’ may mislead the jury and will not be permitted.”³⁵⁰

3. Qualification and Proficiency Rulings

Judges have also focused on the proficiency of the particular expert to answer the preliminary question of whether a person is qualified to be an expert under Rule 702. Rule 702 requires that an expert witness have sufficient “knowledge, skill, experience, training, or education.”³⁵¹

Typically, proficiency tests are administered by commercial test providers in which accredited labs are required to administer such tests annually.³⁵² For example, one leading provider, Collaborative Testing Services (“CTS”), makes available on its website the results of its tests for each discipline. CTS has cautioned that no “error rate” can be generalized from such tests because they are designed to be elementary.³⁵³ Such tests are not proctored, can be taken in groups, have no time limit, include materials that are of unknown realism and difficulty, and are not “blind,” since participants know that it is a test.³⁵⁴ However, the results do highlight the types of errors that practitioners may make. For example, a 2022 test included 7 participants, or 2% of the examiners, that failed to correctly identify the bullet that the known firearm had in fact fired in a test with a very small number of items; far higher numbers of examiners reported inconclusive responses which were also not accurate (but which CTS noted may follow lab practices).³⁵⁵

In United States v. Cloud, the judge emphasized that one of the two examiners in the case had failed a proficiency test and was allowed to return to work after a second proficiency test, in which the examiner had to do an “in-depth consultation” with a supervisor.³⁵⁶ The court found that it could not “in good conscience qualify [the examiner] as an expert with the requisite skill to perform fingerprint comparisons when her two most recent proficiency exams either contained an error or required a significant amount of assistance from her supervisor ” and further, the finding was bolstered by the portions of “testimony and performance reviews that touch on her skill, willingness to take correction, and confidence performing her work.”³⁵⁷ In the Willock case, the examiner’s “qualifications, proficiency and adherence to proper methods [we]re unknown.”³⁵⁸

Many courts traditionally focused on an expert’s credentials and self-professed expertise when conducting this inquiry into the qualifications of the witness.³⁵⁹ However, as one of the authors and Gregory Mitchell have argued, a careful inquiry into objective proficiency of the witness should be an integral part of the question whether a person should be qualified as an expert.³⁶⁰ Indeed, such proficiency issues can raise larger red flags concerning the reliability of a crime lab unit and not just an individual examiner. Years before the Metropolitan Crime Lab had its accreditation revoked, as described in our introduction, a firearms examiner had failed a proficiency test after two colleagues had verified the work, implicating their own proficiency as well.³⁶¹ Perhaps more careful attention to those proficiency tests could have prevented subsequent errors and systems failures of the firearms unit and the entire laboratory.

4. As-Applied Challenges

Still additional challenges have focused on Rule 702(d), which used to provide that qualified expert testimony is admissible only when “the expert has reliably applied the principles and methods to the facts of the case.”³⁶² These “as applied” challenges focus on the work that an expert does and not just whether they followed the right steps, but also whether their casework was actually supported by a valid method.³⁶³ Thus, some challenges have focused on, for example, the lack of documentation by firearms experts and the way they used their methods in a particular case.³⁶⁴ Some courts have found the presence of some documentation, such as “notes, worksheets, and photographs,” to be sufficient.³⁶⁵

III. LESSONS FROM THE PATH OF FIREARMS EVIDENCE

The arc of judicial review of firearms evidence follows a pattern that is familiar in forensics more generally. Early judicial skepticism of a novel technique was overcome by claims of expertise relying on new technology (a microscope at the time), forceful claims to expertise by aggressive personalities (chiefly Major Goddard), some highly useful applications of the technique (to simply measure class characteristics), and steady accumulation of precedent. Then, as scientific critiques and evidence of error rates mounted, judges began to express some skepticism which has substantially increased in recent decades, producing a large body of law limiting firearms evidence in a range of ways.

That said, we underscore that other courts have not sought to introduce evidence concerning limitations of firearms evidence, much less imposed limitations. An appellate court in Missouri, for example, found no error in a judge’s refusal to allow defense attorneys to cross-examine the firearms expert concerning the findings of the NAS and PCAST reports.³⁶⁶ Further, even in recent years, “many courts have continued to allow unfettered testimony from firearm examiners who have utilized the AFTE method.”³⁶⁷

The community of firearm examiners has mounted aggressive defenses of their work. In one memorable critique of how scientists and judges have raised questions concerning firearms comparison work, general counsel for the FBI wrote, “It is a lamentable day for science and the law when people in black robes attempt to substitute their opinions for those who wear white lab coats.”³⁶⁸ And yet it has been scientists—not judges—who have raised the deepest concerns about firearm examination. Statisticians, for example, criticize firearms comparison methods as having been “developed by insular communities of nonscientist practitioners” who, as a result, “did not incorporate effective statistical methods.”³⁶⁹ As one litigator colorfully wrote in a Daubert brief, “Astrologers believe in the legitimacy of astrology. . . . And toolmark analysts believe in the reliability of firearms identification; their livelihoods depend on it.”³⁷⁰

The response to these scientific critiques has been to call them “flawed”³⁷¹ and double down on the claim that error rates are extraordinarily low. The FBI, for example, asserted in a 2022 case that there is an error rate of “1%.”³⁷² Federal prosecutors have repeatedly argued that “[f]irearms and toolmark identification meets all the Daubert criteria. Accordingly, there is no scientific or legal basis to exclude this evidence or even limit it.”³⁷³ Indeed, then-Attorney General Loretta Lynch more broadly responded to the PCAST report, upon its release, as not affecting the work of the Department of Justice: “We remain confident that, when used properly, forensic science evidence helps juries identify the guilty and clear the innocent. . . . While we appreciate their contribution to the field of scientific inquiry, the department will not be adopting the recommendations related to the admissibility of forensic science evidence.”³⁷⁴

Some reactions in the field have been less defensive. Apparently in response to criticism by Judge Edelman, AFTE has opened its publications to outside viewing—one judge “applauds the publication’s changes and encourages AFTE and similar organizations to continue to open their publications up for criticism and review from the larger scientific community if they wish to meet Daubert’s rigorous standard.”³⁷⁵ However, the judge nevertheless found that the quality of the studies did not provide strong support for admissibility under Daubert.³⁷⁶

One response by judges has been, as described, to limit the verbal formulations that firearms experts use when reaching conclusions. There are reasons to doubt that this compromise solution has been effective in communicating to jurors the limitations of firearms evidence. Two of us collaborated on a mock jury study examining how laypersons evaluate different firearms expert conclusions.³⁷⁷ None of the limitations on firearms testimony adopted by courts, such as reasonable scientific certainty or more likely than not, had any impact on conviction rates except for the most far-reaching language, imposed in Tibbs, that barred any conclusion linking the firearms in question but rather permitting only a statement that a firearm cannot be excluded.³⁷⁸

To be sure, the more recent rulings that permit only testimony concerning class characteristics go further than ruling out any language of inclusion. They limit the expert to testimony concerning objective measurements (for example, the width of the cartridge or bullet) and prevent more speculative testimony concerning probabilities that something came from a particular firearm. These rulings return firearms comparison to its roots: measuring objects. This can be useful and provide valuable information.

We have not seen judges take the approach to reliability, which is codified in Rule 702, that PCAST did, for example, insisting that “[t]he only way to establish the scientific validity and degree of reliability of a subjective forensic feature-comparison method—that is, one involving significant human judgment—is to test it empirically by seeing how often examiners actually get the right answer.”³⁷⁹

In fact, some judges have expressly rejected this approach, stating that PCAST’s requirement of empirical study “goes beyond what is required by Rule 702.”³⁸⁰ However, there are strong reasons to think that jurors will benefit from more information regarding error rates and the reliability of the firearms comparison method, just as PCAST recommends and as mock jury experts have found productive—even just the bare acknowledgement that errors occur can impact jurors who assume that these experts are infallible unless told otherwise.³⁸¹

We note that this guidance extends not just to black box-type studies of the method, but also proficiency testing and other assessments of how well experts do their work in case-work settings, as well as blind testing, in which they do not know that they are being tested. Given how cognitive biases can impact the work of examiners in forensic settings, the evidence from black box studies may substantially underestimate error rates in actual casework.³⁸² Moreover, jurors are extremely receptive to such information as well.³⁸³

Nor have we seen judges take the approach of the American Statistical Association, which would require examiners to affirmatively state that there is no statistical basis for any probabilistic conclusion in their field.³⁸⁴ Judges have, perhaps understandably, been far more comfortable with limiting conclusion language of experts than affirmatively requiring experts to explain limitations of their methods.

The 2023 amendments to Federal Rule of Evidence 702 encourage judges to more carefully consider that the proponent of an expert bears the burden to show that the various reliability requirements are met as well as that the opinions that the expert formed are reliably supported by the application of the methods to the data.³⁸⁵ That rule change, while reflecting prior law and not intended to change the substance of Rule 702, highlights the importance of judicial gatekeeping regarding the evidence that the proponent of the expert has that the work done, as well as the opinions reached, were grounded in reliable interpretation of data. The amendment supports the approach that we recommend: simply put, the exclusion of methods that are not demonstrated to be reliable. At a minimum, experts should also, as the American Statistical Association states, disclose all of the known limitations of their work.

Despite mounting scientific concerns and a limited response to the problem of firearms testimony by the Department of Justice,³⁸⁶ there has been a substantial federal investment in increasing the use of firearms comparison work. The federal database, the National Integrated Ballistic Information Network (“NIBIN”), has been supported by extensive federal grants, including regarding the expensive imaging equipment used on firearms evidence, to enter it into the database. Interestingly, the algorithms used to search that database remain a black box—the federal government has sponsored research on increasing the speed and efficiency of searches but not on how reliable “hits” are using the database.³⁸⁷

Technology may eventually supply reliable means to provide quantitative information about the probability that a bullet or shell casing came from a particular firearm. Statistical approaches to this problem are under development, and one has been piloted by researchers with some promising initial results.³⁸⁸ It may be that this is a scientific challenge that can be met. But for many decades, courts were willing to allow examiners to claim expertise that they lacked, based on assertions of experience, training, and proficiency that were not tested. Fortunately, now that those assertions have been minimally tested, some courts are stepping back to assess whether this expertise should be permitted. It is an object lesson in the acceptance and use of expert evidence in criminal courts, however, that has taken over a century for that shift to occur.

We end by emphasizing two other points. In this Article, we have focused on firearms comparison work, but it is only one specialty in the area of forensic toolmark comparison. It is among the most commonly used and has attracted sustained scientific and judicial attention, but as David Kaye and colleagues have importantly pointed out, “there is less research into the accuracy of associating impressions from tools such as screwdrivers, crowbars, knives, and even fingernails.”³⁸⁹ There is every reason to think that those other types of toolmark comparison raise similar or far larger reliability concerns.

Further, in this Article we have focused on criminal cases that proceed to a trial and evidentiary rulings at trial and on appeal. Yet, courts often do not have a Daubert hearing or issue written rulings regarding expert evidence questions.³⁹⁰ There have been high-profile wrongful convictions in cases involving firearms evidence, like that of Curtis Flowers who had six criminal trials, and no reported decisions discussing the firearms evidence involved.³⁹¹ In a very interesting 2020 case, a judge found it appropriate for an exonerated person to introduce experts to show that the firearms evidence should have been exculpatory at the time of trial.³⁹² And most criminal cases are not tried. Lawyers may plea bargain cases based in part on the perceived power of a firearms comparison. Indeed, courts have regularly rejected application of Daubert reliability standards in other pretrial contexts, such as an application for probable cause relying on a firearms comparison.³⁹³ Further, laboratory audits have occurred based on revelations regarding errors in firearms work, which have not generated any written opinions in court, but which highlight the importance of forensic science commissions and other bodies tasked with investigating quality control failures in crime laboratories.³⁹⁴ Thus, while there may be increasingly careful judicial review of firearms expertise in trial settings, much of the use of forensic evidence may remain largely unreviewed by judges.

CONCLUSION

We do not know how often people have been wrongly convicted based on erroneous firearms comparison conclusions. But we do know of people convicted based on firearms evidence testimony who have since been exonerated. For example, on January 16, 2019, Patrick Pursley was exonerated, in part because “evidence in 1993 was scant by today’s standards, and when you start with scant evidence you’re not in a good position to reevaluate it years later.”³⁹⁵ In that case, the judge found that defense experts demonstrated conclusively that the cartridge cases in question were not fired by the gun attributed to Pursley.³⁹⁶

We have described how over the past one-hundred-plus years, judges’ initial skepticism of early firearms experts transformed into growing judicial acceptance, in large part because confident experts displayed new terminology, techniques, and technology like the comparison microscope. The result was—and still remains—“an overwhelming acceptance in the United States and worldwide of firearm identification methodology.”³⁹⁷ But despite a mountain of long-standing precedent, judicial acceptance of this testimony has eroded in recent years. After many decades of rote acceptance of the assumptions underlying the methodology, judicial interest in firearms expert evidence has exploded. Over half of the judicial rulings that we identified have occurred since 2009, the year that the NAS issued its pathbreaking report. Dozens of opinions limit testimony of firearms experts in increasingly stringent ways.

This sea change has occurred because of the work of lawyers, judges, and particularly scientists, who have played a key role in generating a new body of precedent. Scientists have demanded studies to examine questions of reliability, and they have exposed how the resulting studies uncovered deep concerns regarding error rates in firearms analysis. Firearms experts may have testified with confidence in the past. But today, they increasingly face defense experts who turn the microscope to the scientific flaws underlying firearms identification. In turn, judges have increasingly engaged closely with scientific research, error rate studies, and defense expert witnesses.

The Daubert revolution did not result in an immediate shift in how judges reviewed firearms evidence, but over time, judges have begun to grapple with the reliability standards. The scientific community continues to inform that work with detailed critiques. In turn, defense lawyers have launched more precise challenges that have shaped precedent.

The December 2023 revisions to Rule 702, designed to address both the burden to show that an expert is reliable and the manner in which experts reach and express conclusions, will solidify the focus—sharpened in firearms evidence rulings—on both of those important aspects of the judicial gatekeeping role. The resulting body of law has already reshaped how firearms evidence is received in criminal cases, and it provides important lessons regarding the slow, but perhaps steady, reception of science in our precedent-bound halls of justice.

APPENDIX

Appendix A. Judicial Rulings Limiting Firearms Evidence, 2005–2022
Citation	Limitation on Testimony
United States v. Felix, No. CR 2020-0002, 2022 U.S. Dist. LEXIS 213513 (D.V.I. Nov. 28, 2022)	Limiting testimony to conclusions regarding class characteristics and whether individual toolmarkings were “consistent”
United States v. Stevenson, No. CR-21-275-RAW, 2022 U.S. Dist. LEXIS 170457 (E.D. Okla. Sept. 21, 2022)	Limiting expert to “reasonable degree of ballistic certainty”
Winfield v. Riley, No. 09-1877, 2021 U.S. Dist. LEXIS 85908 (E.D. La. 2021)	Limiting expert to “more likely than not” conclusion
United States v. Adams, 444 F. Supp. 3d 1248 (Or. 2020)	Observational evidence permitted but no methods of conclusions relating to whether casings “matched” to be admitted
People v. Ross, 129 N.Y.S.3d 629 (Sup. Ct. 2020)	Ruling that “qualitative opinions” can only be offered on the significance of “class characteristics”
United States v. Hunt, 464 F.Supp.3d 1252 (W.D. Okla. 2020)	Permitting “reasonable degree of ballistic certainty”
State v. Raynor, 254 A.3d 874 (Conn. 2020)	Permitting “more likely than not” testimony
United States v. Harris, 502 F. Supp. 3d 28 (D.D.C. 2020)	Instructed expert to abide by DOJ limitations, including not using terms like “match” and not claiming to exclude all firearms in the world
Williams v. United States, 210 A.3d 734 (D.C. 2019)	Finding error to permit expert to testify that there was not “any doubt” in conclusion
State v. Gibbs, 2019 Del. Super. LEXIS 639 (Del. Sup. Ct. 2019)	May not testify to a “match” with any degree of certainty, and may not testify to a “reasonable degree” or “practical impossibility”
United States v. Tibbs, 2019 D.C. Super LEXIS 9 (D.C. Super. 2019)	Limiting testimony to “the recovered firearm [that] cannot be excluded as the source of the cartridge casing found on the scene of the alleged shooting”
United States v. Davis, 2019 U.S. Dist. LEXIS 155037 (W.D. Va. 2019)	Preventing testimony to any form of “a match”
United States v. Shipp, 422 F.Supp.3d 762 (E.D.N.Y. 2019)	Preventing testimony “to any degree of certainty”
United States v. Medley, No. PWG 17-242 (D. Md. April 24, 2018)	Permitting “consistent with” but no opinion fired by same gun
State v. Terrell, 2019 Conn. Super. LEXIS 827 (Conn. 2019)	Prohibiting testimony regarding likelihood so remote as to be practical impossibility
United States v. Simmons, 2018 U.S. Dist. LEXIS 18606 (E.D. Va. 2018)	Limiting to “a reasonable degree of ballistic . . . certainty”
United States v. White, 2018 U.S. Dist. LEXIS 163258 (S.D.N.Y. 2018)	Holding that expert may not provide any degree of certainty unless pressed on cross-examination and may then present “personal belief”
State v. Jaquwan Burton, Superior Court, No. CR14-0150831 (Conn. Super. Ct. Feb. 1, 2017)	Permitting “consistent with” but no opinion that it was fired by same gun
Missouri v. Goodwin-Bey, No. 1531-CR00555-01 (Mo. Cir. Ct. Dec. 16, 2016)	Limiting to “the recovered firearm [that] cannot be excluded as the source of the cartridge casing found on the scene of the alleged shooting”
Gardner v. United States, 140 A.3d 1172 (D.C. 2016)	Error to admit “unqualified” testimony with “100% certainty”
United States v. Cazares, 788 F.3d 956 (9th Cir. 2015)	Limiting to “reasonable degree of scientific certainty”
United States v. Black, 2015 U.S. Dist. LEXIS 195072 (D. Minn. 2015)	Limiting to “reasonable degree of ballistics certainty” and barring “certain” or “100%” conclusions
United States v. Ashburn, 88 F. Supp. 3d 239 (E.D.N.Y. 2015)	Limiting to “reasonable degree of ballistics certainty” and precluding “certain” and “100%” sure statements
United States v. McCluskey, 2013 U.S. Dist. LEXIS 103723 (D.N.M. 2013)	Limiting testimony to “practical certainty” or “practical impossibility”
United States v. Mouzone, 687 F.3d 207 (4th Cir. 2012)	Approving trial ruling limiting any expression of certainty
United States v. Love, No. 2:09-cr-20317-JPM (W.D. Tenn. Feb. 8, 2011)	Barring testimony of “practical” or “absolute” certainty
Commonwealth v. Pytou Heang, 942 N.E.2d 927 (Mass. 2011)	Limiting to “reasonable degree of ballistics certainty”
United States v. Cerna, 2010 U.S. Dist. LEXIS 144424 (N.D. Cal. 2010)	Limiting to “reasonable degree of ballistics certainty”
United States v. Willock, 696 F. Supp. 2d 536 (D. Md. 2010)	“[A] complete restriction on the characterization of certainty” and precluding “practical impossibility” conclusion
United States v. Taylor, 663 F. Supp. 2d 1170 (D.N.M. 2009)	Limiting to “reasonable degree of scientific certainty”
United States. v. Glynn, 578 F. Supp. 2d 567 (S.D.N.Y. 2008)	Limiting to “more likely than not”
United States v. Diaz, 2007 U.S. Dist. LEXIS 13152 (N.D. Cal. 2007)	Limiting to “reasonable degree of certainty in the ballistics field” and no testimony “to the exclusion of all other firearms in the world.”
United States v. Monteiro, 407 F. Supp. 2d 351 (D. Mass. 2006)	Limiting to “reasonable degree of ballistic certainty”
Commonwealth v. Meeks, 2006 Mass. Super. LEXIS 474 (Mass. Super. Ct. 2006)	Requiring examiner to present “detailed reasons” for rulings
United States v. Green, 405 F. Supp. 2d 104 (D. Mass. 2005)	Barring “to the exclusion of all other guns” language

97 S. Cal. L. Rev. 101

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Brandon L. Garrett*

* Neil Williams, Jr. Professor of Law, Duke University School of Law, Faculty Director, Wilson Center for Science and Justice. Many thanks to Anthony Braga, Mugambi Jouet, Daniel Klerman, Charles Loeffler, Thomas D. Lyon, Aurelie Ouss, Danibeth Richey, Greg Ridgeway, D. Daniel Sokol, and the participants at workshops at University of Southern California Gould School of Law, a Center for Statistics and Applications in Forensic Evidence webinar, and the Department of Criminology, University of Pennsylvania for their feedback on earlier drafts, to Stacy Renfro for feedback on the firearms case law database, to Richard Gutierrez for helpful comments, and to Hannah Bloom, Erodita Herrera, Megan Mallonee, Linda Wang, and Grace Yau for their research assistance. This work was funded (or partially funded) by the Center for Statistics and Applications in Forensic Evidence (CSAFE) through Cooperative Agreements 70NANB15H176 and 70NANB20H019 between NIST and Iowa State University, which includes activities carried out at Duke University and University of California, Irvine.

Eric Tucker†

† J.D., Duke University School of Law.

Nicholas Scurich‡

‡ Visiting Research Professor of Law, University of Southern California Gould School of Law. Professor of Psychology and Criminology, University of California, Irvine.

Examining Empathy: Discrimination, Experience, and Judicial Decisionmaking – Article by Jill Weinberg & Laura Beth Nielsen

January 2012February 2018Emma Tehrani

From Volume 85, Number 2 (January 2012)
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There are moments when the law is not enough.

In Virginia v. Black, a normally silent Justice Clarence Thomas interjected with what one commentator called a “Luke-I-am-you-father” voice. The case involved a First Amendment challenge to a Virginia law that prohibited cross burning. During a deputy U.S. solicitor general’s oral argument in favor of the law, Justice Thomas condemned him for not going far enough. Justice Thomas, who grew up in the segregated South and was the only black Justice on the bench, posed a very potent question: “Aren’t you understating the . . . effects of . . . the burning cross” given that crosses were “symbol[s] of [a] reign of terror” during the “100 years of lynching . . . in the South?” He continued, “I think that what you’re attempting to do is to fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish.”

Similarly, during the Senate Judiciary Committee hearing on the nomination of then-nominee, now-Justice Sonia Sotomayor, Senator Jeff Sessions challenged her prior representations that she could be an impartial judge by quoting remarks she made the day before: “You have repeatedly made this statement: ‘I accept the proposition that a difference there will be by the presence of women and people of color on the bench, and that my experiences affect the facts I choose to see as a judge.’” Without hesitation, Sotomayor responded, “the point that I was making was that our life experiences do permit us to see some facts and understand them more easily than others.” Ultimately, Senator Sessions made his stance clear that empathy and judicial decisionmaking can and should be mutually exclusive, saying, “Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is not law. In truth, it is more akin to politics, and politics has no place in the courtroom.”

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Trading Votes for Reasoning: Covering in Judicial Opinions – Article by Stephen J. Choi & G. Mitu Gulati

May 2008February 2018Sylvia Zaich

From Volume 81, Number 4 (May 2008)
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Studies report that judges who are on panels with at least one other judge of a different political party (a “mixed panel”) tend to moderate their votes, particularly when cases involve politically charged subject matter. We examine whether this moderation in voting is the product of bargaining among mixed panel judges, where authoring judges, who might otherwise face a dissenting vote (or find themselves in dissent), trade their votes for the ability to craft the reasoning in a unanimous majority opinion closer to their own policy preferences and thereby affect the opinion’s precedential value. Using citation patterns within opinions as a proxy for how judges reason, we report that authoring judges on mixed panels do not moderate their reasoning when it comes to opinions relating to salient subject matter areas. Partisan reasoning in top salient areas is also higher when the authoring judges have more bargaining leverage over opposite party judges on the same panel. Finally, partisan reasoning in top salient areas is greatest among authoring judges who have the most skill at writing influential opinions. The foregoing is consistent with the theory that judges engage in covering: moderating their voting when associated with an opposite party judge on the same panel, a highly visible activity, but adjusting the reasoning in the opinion to tilt the decision back toward the authoring judge’s own preferred ideological position, a less visible activity, done under the cover of the more visible, moderated vote.

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Introduction

I. The Major Questions Doctrine and Major Questions Avoidance

A. The Major Questions Doctrine(s)

B. Major Questions Avoidance

“Slicing”

“Lumping”

“Glossing”

“Bypassing”

II. The Benefits and Costs of Major Questions Avoidance

A. Benefits

B. Costs

Administrative Burdens

Litigation Risks

Political Costs

III. Major Questions Avoidance and the Legitimacy of the Administrative State

A. Presidential Legitimacy

B. Legislative Legitimacy

C. Expert Legitimacy

D. Participatory Legitimacy

IV. Major Questions Anti-Avoidance

A. Ex Ante Anti-Avoidance

B. Ex Post Anti-Avoidance

Conclusion

98 S. Cal. L. Rev. 1497

Introduction

I. The Creation of State Judiciaries and the Supervisory Power

A. State Constitutional Roots

B. The Development of Modern State Supreme Courts

1. The Need for Reform

2. State Court Modernization

3. State Supreme Courts and State Governance

II. The Supervisory Power IN the U.S. and State Supreme Courts

A. State Supreme Court Supervisory Power

Uses

a. Adjudicative

i. Rights and Remedies

ii. Law Development

iv. Oversight

b. Non-adjudicative

i. Policymaking for the General Welfare

ii. Interbranch Engagement

Attributes

a. Freestanding

b. Lower Showing Needed

c. Discretionary

d. Flexible

e. Normative in Nature

B. U.S. Supreme Court Supervisory Power

Comparison

Judicial Administration and Constitutional Structure

III. Boundaries and Limits

A. Boundaries

Legalness

Proximity to the Judiciary

IV. Implications

A. Theoretical Implications

B. Normative Implications

Conclusion

98 S. Cal. L. Rev. 1543

INTRODUCTION

I. MODERN LAW OF JUDICIAL PEREMPTORY DISQUALIFICATION

A. Federal Law

B. California Law

1. California Code of Civil Procedure Section 170.6

2. Judicial Rules

3. Comparison to Peremptory Juror Challenges

C. Comparison Between California Law and Other States’ Law

II. THE POLICY TRADE-OFFS

A. Public Confidence in the Judiciary

B. Abuse of the Challenge

C. Intimidation of Judges

D. Discrimination Against Judges

III. EMPIRICAL FINDINGS IN CALIFORNIA

A. Research Methodology

B. Preliminary Empirical Data

IV. ALTERNATIVES TO CALIFORNIA’S JUDICIAL PEREMPTORY CHALLENGE

A. Existing Alternative Procedures

1. The Panel-Exclusion Approach

2. The Interlocutory Appeal Approach

3. The Independent Judge Approach

From Volume 85, Number 2 (January 2012)
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From Volume 81, Number 4 (May 2008)
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