Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

The Supreme Court justices, as we have seen, have already shown some inclination toward constitutional symmetry. The Court’s overall output suggests an interest in visibly distributing wins and losses across partisan and ideological divides; its reasoning in some cases, and especially in some dissents, has invoked an imperative of symmetry more or less explicitly; and several narrow decisions reaching unexpected results suggest a self-conscious effort to maintain a public reputation for apolitical fidelity to law. This impulse, however, has remained inchoate and untheorized. As a result, the effort has appeared cynical and sporadic rather than principled and consistent. To fulfill its full potential as a stabilizing approach to constitutional law in our divided republic, judges and justices must embrace an ethic of symmetric interpretation more self-consciously and with greater consistency.

Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

Chapter 6 narrates the 2nd Texas’ post Shiloh service record, including the bloody battle of Corinth in October 1862, which resulted in the martyred death of Colonel Rogers. Although there were questions surrounding his death, a celebratory tale of him took shape, portraying him as a martyr for the Confederate cause. After Corinth, the 2nd Texas had transformed into an elite fighting unit, but the stigma of Shiloh seemed to linger. The chapter closes with their final days in Galveston, depleted and demoralized.

Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

This chapter advocates an ethic of “symmetric interpretation” as a solution to the challenges outlined in Chapter 1. To prevent undue politicization of constitutional law, judges should favor, when possible, constitutional understandings that are “symmetric” in the sense of conferring valuable protections across both sides of the nation’s major political and ideological divides. By the same token, they should disfavor understandings that frame constitutional law as a matter of zero-sum competition between rival partisan visions. Favoring symmetric understandings in this sense will not always be possible. When it is possible, however, favoring symmetry may provide a point of common orientation for judges with differing policy preferences and interpretive outlooks. Reflecting this approach's inherent appeal, an inchoate preference for symmetry is already evident in judges’ opinions, oral argument questions, and reasoning.

This chapter refines the concept of constitutional symmetry and anticipates some potential objections. Contrary to what skeptics might assert, judges can reliably assess whether particular constitutional understandings are symmetric or not. In addition, favoring symmetry is valuable even though political alignments may shift in the future, and arguable asymmetries in the Constitution itself are not a reason to disfavor symmetric interpretations of provisions whose meaning is debatable. Symmetric interpretation also addresses contemporary challenges better than competing proposals to embrace “proportionality” in rights adjudication, give greater weight to existing precedent, or pursue one contemporary constitutional vision or another in no-holds-barred fashion. For judges who embrace an ethic of symmetric interpretation, a preference for symmetry should hold the greatest purchase in crafting general understandings of discrete constitutional provisions rather than overall interpretive theories or case-specific results, and judges should favor symmetric understandings even if their colleagues do not.

This chapter explores symmetry’s implications for equal protection jurisprudence. A stark political divide has emerged between two understandings of legal equality, particularly with respect to race: conservatives generally favor an “anti-classification” approach focused on ensuring government neutrality, while progressives typically favor an “anti-subordination” approach that allows affirmative governmental action to redress historical group disadvantages. Although the Supreme Court has increasingly aligned its jurisprudence with the anti-classification perspective, symmetry should encourage an approach that gives something to both sides. The Court might accomplish this goal in at least three ways: by returning to the focus on diversity reflected in its earlier decision in Regents of the University of California v. Bakke while giving this framework greater “bite”; by allowing majority groups to disadvantage themselves, so long as they are genuinely dominant at the relevant level of government; and by sometimes allowing selection of government criteria with a view to their demographic effects, so long as these criteria are themselves facially neutral.

Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.