Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits’ Nonprecedential Status Rules Are (Profoundly) Unconstitutional

INTRODUCTION 956 I. HISTORY 964 A. Nonprecedential Status Rules; Delegated Adjudication; and Abbreviated Appelle Processes 964 B. Living History: What Really Goes On in the Sausage Factory ..... 972 C. History of Unconstitutionality Jurisprudence 977 II. CONSTITUTIONAL ANALYSIS 984 A. Predecessor Scholarship 984 1. Non-Article III Arguments 984 2. Article III Arguments 985 a. Originalist Fantasies: The Arnold-Kozinski Debate and its Commentators 985 b. Narrow Article III Arguments 990 c. Inherent Article III and Constitutionality of Precedent Scholarship 997 B. Why Existing Models for the Ultra Vires Analysis Are Inadequate . . 1000 C. And What of the Unexplored (Doctrinal) Alternatives? 1001 1. Article III and Fundamental Interests: The Right of Access to Courts 1001 2. Nondelegation Doctrine 1005 III. TOWARD A "THICK" DOCTRINE OF ARTICLE III POWER 1018 A. Critical Reading of Inherent Article III Separation of Powers Cases 1018 B. Essential to the Administration of Justice/Functioning of the Judiciary 1025 C. Constitutional Logic 1027 CONCLUSION: THE GROUNDS FOR-AND TIMELINESS OF-A JURISPRUDENCE OF ARTICLE III DUTY 1031 A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life.1 Judge Arnold's opinion in Anastasoff is remarkable for its portrayal of our judicial system as guilty of the same kinds of ill-conceived miscalculations that the courts daily unveil in the context of administrative agencies and large corporations.2 [T]he Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concerns for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.3 INTRODUCTION In the post-Brown era, many Americans have come to believe that the federal courts, and the judges who embody them, are their best protectors against government overreaching or unfair or unequal treatment at the hands of the state.4 It was not always this way. A small plaque in the National Parks' Service Liberty Bell exhibit in Philadelphia tells an older, different, and abiding story: at one time in the bell's peripatetic history, it was housed in the same building as the federal district court that enforced the Fugitive Slave Act of 1850.5 What should the federal courts of appeals do when confronted with assertions from among their ranks that their own judging practices are themselves unconstitutional? Practices such as enacting rules that would strike many common-law lawyers as bizarre, ostensibly for rational reasons, when there is evidence that they function and are in part designed to give cover to shoddy practices, including denying similarly situated litigants equal treatment; systematically structurally subordinating "havenots;"6 and delegating most of their workload to often under-supervised staff whose competence the judges mistrust? Although this Article goes on to propose one answer, another deserves mention: in 2001, a respected intellectual leader of the federal appellate bench7 threw a bomb8 into the way the federal courts have come to exercise Article III office since the late 1950s. …