THE STRANGE CAREER OF THE THREE-JUDGE DISTRICT COURT: FEDERALISM AND CIVIL RIGHTS, 1954-1976.

• Author: Solimine, Michael E.

ABSTRACT

The three-judge district court has had a long and strange career in the history of the federal court system. Congress created the court in 1910 as a response to the canonical decision of Ex parte Young two years earlier, which permitted federal court suits against state officials to facilitate constitutional challenges to state laws. The three-judge court statute was a reaction by Progressive Era politicians to such perceived judicial overreach, and required any such challenges to be brought before a specially convened trial court of three judges, with a direct appeal to the Supreme Court available. First established as a presumed limit on judicial activism, decades later, plaintiffs in the Civil Rights Era came to see the court as advancing their agenda. Particularly in the South, some plaintiffs preferred to have their suits decided by three judges rather than the usual one, with a direct appeal available to a relatively friendly Warren Court. For that and other reasons, the total number of such cases in the district courts, and direct appeals to the Supreme Court, swelled in the 1960s and 1970s. But at the same time, the court came to be seen by many as administratively burdensome and unnecessary, and Congress in 1976 severely restricted the jurisdiction of the court, limiting it to hearing only reapportionment cases.

Analysis of the three-judge district court has so far largely relied on anecdotal evidence, and limited empirical studies, to examine whether some plaintiffs in the Civil Rights Era were correct to consider the court as friendly to their interests, as compared to a typical single district judge with the normal appeal process. This article breaks new ground and extends those studies by systematically reexamining these assumptions through a unique, nationwide database of 885 three-judge district court decisions, regarding constitutional challenges to state laws, handed down from 1954 (the start of the Warren Court) to 1976 (when Congress limited the Court's jurisdiction). The study provides greater and more complete information on the number, types and results of cases litigated in the court, as well as on the dispositions of appeals to the Supreme Court. Among our findings are that such court decisions were disproportionately in favor of plaintiffs, both in and outside the South, and that there was a high rate of appeal to the Supreme Court. We then consider how the decisions of the three-judge court, and its direct appeal mechanism, affected jurisprudential developments in several areas of civil rights litigation, including reapportionment and judicial abstention. We also address how these decisions impact the Judicial Capacity model, which posits that the sheer number of cases that come to the Court for review affects doctrinal developments. The study situates the three-judge district court in a richer historical context, and sheds light on the continued use of the court in more limited contexts to the present day.

Contents INTRODUCTION I. CONGRESS, COURTS, LITIGANTS, AND THE THREE-JUDGE DISTRICT COURT A. The History of the Three-Judge District Court B. The Three-Judge District Court in the Civil Rights Era II. EMPIRICAL STUDY OF THREE-JUDGE DISTRICT COURT DECISIONS IN CIVIL RIGHTS CASES, 1954-1976 A. Data Collection, Case Coding, and Hypotheses B. Results of Study 1. Overall Number and Types of Cases 2. National and Regional Trends and Differences: Frequency and Results of Cases 3. Direct Appeals to the Supreme Court: Frequency and Disposition III. THE JURISPRUDENTIAL IMPACT OF THE THREE-JUDGE DISTRICT COURT A. Competing Models of Impact B. Case Studies of Jurisprudential Impact 1. Reapportionment 2. Judicial Abstention 3. Judicial Capacity and Tiers of Scrutiny C. Contemporary Impact: National Injunctions and Returning to Mandatory Jurisdiction CONCLUSION METHODOLOGICAL APPENDIX Database of Three-Judge District Court Decisions Coding of Decisions INTRODUCTION

Legal scholars have long examined federal courts' exercise of judicial review, which at its core is the judicial determination of whether a federal statute violates the U.S. Constitution. Such review of lawmaking by a coordinate branch of government raises both counter-majoritarian and separation-of-powers concerns. (1) Similarly, legal scholarship has long examined how federal courts have judicially reviewed statutes passed by the States. That too raises counter-majoritarian concerns, but few, if any, issues from separation of powers. (2) Instead, the latter is replaced by federalism concerns, the power of the federal government to supervise and possibly overturn the actions of state governments. (3)

This all covers familiar territory. What is possibly less familiar is that, over the course of American history, federal courts have taken different institutional paths in examining state statutes. Consider one recent high-profile example of federal courts reviewing and holding state statutes unconstitutional. In Obergefell v. Hodges, (4) a majority of the Supreme Court held that state same-sex marriage bans violated the Due Process Clause of the Fourteenth Amendment. (5) While the bans of only four states were before the Court in consolidated cases, the Court effectively invalidated the similar bans of over thirty other states. (6) The cases came to the Court through the unexceptional process of a civil rights action filed in a U.S. District Court before one judge, with review thereafter by a three-judge panel on a U.S. Court of Appeals, and by the Supreme Court through a discretionary writ of certiorari. (7)

But the path of such litigation would have been quite different had it been filed during a long period in the 20th century. Had it been litigated between 1910 and 1976, such suits would have been heard before specially convened three-judge district courts, consisting of the district judge before whom the case was originally filed, and two other judges appointed by the Chief Judge of the circuit, typically another district judge and a circuit judge. (8) Any review of the decision of that three-judge panel would be by direct appeal to the Supreme Court, (9) which at least ostensibly would be required to decide that appeal on its merits. A high-profile example of its use to invalidate many state laws, as a counterpoint to Obergefell, is the Court's 1973 decision on state abortion laws, Roe v. Wade. (10)

This article focuses on that less familiar story. Part I begins by describing the long and strange (11) career of the three-judge district court. Congress created the court in 1910 as a response to the then controversial, now-iconic Supreme court decision of Ex parte Young (12) That decision permitted federal court suits against state officials to challenge the constitutionality of state laws. (13) The three-judge district court was a reaction by Progressive Era politicians to the perceived judicial overreach of cases like Ex parte Young, requiring such important suits to be decided by three judges, rather than just one, and for the Supreme Court to be able to promptly hear any appeal. (14) First established as an intended limit on conservative judicial activism, decades later, plaintiffs in the Civil Rights Era came to see the court as advancing their agenda. Particularly in the South, some plaintiffs preferred to have their suits decided by three judges, rather than just one possibly hostile judge, with a direct appeal available to a presumably friendly Warren Court. (15) For these and other reasons, the total number of cases before three-judge district courts, and direct appeals to the Supreme Court, swelled in the 1960s and 1970s. (16) But at the same time, the court came to be seen by many as administratively burdensome and unnecessary, and Congress in 1976 restricted the jurisdiction of the court to reapportionment cases. (17) Part I concludes by addressing the relatively little empirical work that has examined the decision-making by and the results of three-judge district court cases.

As described in Part II, this Article breaks new ground and extends prior studies by systematically examining the assumptions of litigation before three-judge district courts through a nationwide database of 885 decisions from those courts that we collected. We focused on the beginning of the modern Civil Rights Era in 1954 (corresponding to the beginning of the Warren Court) to 1976 (when Congress acted to severely restrict the court's jurisdiction). As reported in Part II, our study provides greater and more complete information on the number, types, and results of cases litigated in the court, as well as on the dispositions of appeals to the Supreme Court. Among our findings are that such court decisions were disproportionately in favor of plaintiffs, both in and outside the South, and that there was a high rate of appeal to the Supreme Court.

Part III steps back to consider what difference, if any, the three-judge court, and its direct appeal mechanism, affected jurisprudential developments in civil rights and civil liberties (18) litigation in the time studied. Would such litigation have been decided, both in lower courts and in the Supreme Court, more-or-less the same in the absence of the three-judge court? Or did the institution of the court have effects on the substance and timing of decisions that possibly would have been different had the three-judge district court not existed? To provide some answers to those questions, we address two important areas of law in the period we study: reapportionment and judicial abstention. We also address how direct appeals of these cases impact the Judicial Capacity model, which posits that the sheer number of cases that come to the Supreme Court for review affects the substance of the doctrines developed by the Court.

The final section of Part III, and the conclusion, suggest some lessons that can be drawn from the history of the three-judge district court for the present...