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 addresses symmetry’s implications for separation of powers and federalism. It suggests that some major structural questions, such as the long-running debate over the president’s authority to fire or “remove” executive officers, hold an intensity out of step with their current political stakes. By contrast, other recent decisions, particularly those limiting agency authority over “major” policy questions and intensively reviewing the reasoned justification for certain policies, threaten to enable selective judicial disapproval of policies favored by progressives rather than conservatives. A preference for symmetry should support limiting or reconsidering these decisions. With respect to federalism, symmetry should likewise encourage the development of doctrines that grant parallel opportunities and protections to rival “red” and “blue” states dominated by either the Democratic or Republican Party.

This chapter outlines the challenges that current political polarization presents for constitutional law and judicial authority. Over the past fifty years, US politics have polarized, producing close political competition between two ideologically defined national parties that view each other with fear and distrust. This polarization has encouraged political actors in Congress and the federal executive branch to take legally aggressive positions and prioritize substantive policy achievements over adherence to good-governance norms or even constitutional restraints. At the same time, polarization has generated rival constitutional visions, and aligned slates of judges, that aim to advance partisan goals through constitutional interpretation. This environment poses risks for both judicial authority and constitutional law, because the public may lose trust in courts as neutral arbiters of constitutional disputes if it perceives them as wholly political institutions.

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 advances theoretical reasons to support symmetric interpretation. First, favoring symmetry accords with the Constitution’s character as a comparatively terse, “framework” document focused on establishing democratic procedures rather than definitive policies. Second, an ethic of symmetric interpretation accords with widely accepted features of judicial role-morality. Finally, symmetric interpretation accords with the framers’ own constitutional aspirations and interpretive methods. Multiple widely accepted theoretical considerations in constitutional law thus support preferring symmetric understandings when possible.

Chapter 2 relates the shocking death of Elmer Ellsworth, the effect it had on his men, and the regiment’s first battle experience at Bull Run. Conflicting accounts emerged in the aftermath of the fight: some positive, heralding the Fire Zouaves’ reckless bravery; but many others were damning, painting a portrait of the men’s panic and fear.

Chapter 3 explores the emotional rhetoric of elected public officials. We examine the presidential speeches of two Democratic presidents – Bill Clinton and Barack Obama. We find that Obama’s speeches are more positive than Clinton’s and less negative as well. The use of anger depends on the target (i.e., issue). Consistent with our theoretical argument, Obama expressed significantly less anger about race relations compared to Bill Clinton. We look even further at the differences between Black and white politicians by examining floor speeches of members of the United States House of Representatives. Most Black Members of Congress are elected in majority (or plurality) minority districts. Therefore, we would not expect for them to be as constrained by anger, particularly about race, as Obama. We find that to be the case. Black Democratic members of Congress convey more anger about race relations than white Democratic members of Congress. These findings suggest that Black politicians limit their anger when whites are a substantial number of the voting population, but Black elected officials and candidates abandon this rule when the electorate has a substantial number of Black voters.

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.

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 4 introduces the second regiment in this study, the 2nd Texas Infantry. It describes its founding and officers, largely representative of the Texas elite. Like the Fire Zouaves, white male Texans had a reputation for bravery, so the expectations that they would make good and courageous soldiers were equally high. But there were signs of problems even in their early days, including discontent by some of their leaders and concerns over supplies. The chapter ends with the regiment hurriedly rushing to the front for expected battle.

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.

Chapter 1 sets up the founding of the 11th New York and the heightened expectations put upon them from the start. It introduces their famed colonel, Elmer E. Ellsworth, who had dreams of reinventing the citizen soldiery with his Zouave drill. But he found that converting boisterous firemen into disciplined soldiers was not quite as easy as he had anticipated. Ellsworth struggled with challenges to his authority and harsh public scrutiny. The chapter ends just as the Fire Zouaves receive orders to embark for Alexandria, confident that success on the battlefield beckoned.

Chapter 3 assesses the effects of the defeat at Bull Run and how the Fire Zouaves became scapegoats for the Union loss. Despite efforts to defend themselves, the regiment imploded, formally disbanded in June 1862. Their demise demonstrated that brave men did not (and do not) always make effective and good soldiers.

Originally established by “we the people,” as its preamble majestically states, the Constitution belongs to us all. But Americans increasingly treat it as the property of one political faction or the other. In keeping with their own preferences, conservatives interpret the Constitution to protect religion, limit gun control, and obstruct administrative governance while allowing state-level regulation of moral questions like abortion. Progressives see a mirror-image constitution that advances social justice, confers broad federal power, and allows flexible administrative regulation while at the same time limiting state and local police authority and guaranteeing sexual and reproductive autonomy. As national politics have grown ever more divided and polarized, preventing either side from implementing its goals through federal legislation, both coalitions have dreamed of capturing the courts and implementing their vision instead through constitutional interpretation. A document that should be a source of unity and shared commitments has become a vehicle for extending political conflict.