Jack B. Weinstein: Judicial Entrepreneur

BY JEFFREY B. MORRIS, 69 U. Miami L. Rev. 393 (2015).

Introduction: The University of Miami Law Review’s 2014 Symposium, Leading from Below, honored Judge Jack B. Weinstein for his extraordinary career as a private practitioner, government lawyer, advisor to legislators and executive officials, major legal scholar, and federal district judge for over forty-seven years. It also offered the possibility of pausing for several days to consider the significance of the federal district courts more generally.

Too little attention is paid to the work of the federal trial courts. In the two months immediately preceding this Symposium, Robert J. Shelby of the U.S. District Court for the District of Utah made it possible for gay couples in Utah to marry by striking down the state’s anti- gay marriage law.Less than one month later, Judge Terrence C. Kern for the Northern District of Oklahoma struck down that state’s constitutional amendment barring same-sex marriage.In December 2013, Judge Richard L. Leon of the U.S. District Court for the District of Columbia held unconstitutional the National Security Agency’s program of collecting data on every American’s telephone records. Within a few days, Judge William Pauley III of the Southern District of New York held the same practice constitutional.At the same time, the New York Review of Books published a blistering article written by a judge of the Southern District of New York demanding an explanation for why there had not been a single prosecution of any prominent figure in the 2008 financial crisis.If this was not enough, the U.S. Court of Appeals for the Second Circuit summarily tossed out the findings of the highly regarded Southern District Judge Shira Scheindlin, who held that the New York City Police Department’s program of stopping and frisking without reasonable individualized suspicion was unconstitutional.

Federal district courts perform functions central to the modern state—“policy-making, and social control, and regime legitimation.”In the United States, the federal courts are instruments of national power. Ordinarily, they are centralizing agents: enforcing the supremacy of the federal government, helping to achieve national uniformity of government policies, and conferring legitimacy on government activities. Yet, paradoxically, the federal district courts are also decentralized institutions operating under and constituted in some measure by state and local political leaders.

As the major intake point for cases in the federal judiciary, the federal district courts are also an important part of the American political process. They provide a forum in which individuals may seek to advance their goals of directing governmental actions and allocating resources. Judicial decisions resolve disputes, enforce norms, and allocate social values. They may not be able to command social change, but they are able to speed it up or slow it down. They monitor the institutions of government and attempt to insure equal treatment and governmental “fair play” by keeping the agencies of government within their constitutional and statutory limits. They also are a “safety valve . . . provid[ing] a forum for outraged individuals or groups to vent their disapproval” of the actions of local, state, and national governments and sometimes of the private sector as well.

Although it is rare for an individual district court judge to make law affecting the entire nation, by far the greatest quantity of cases decided in the federal court system begin and end in the district court.District judges preside over state trials, hear cases involving political corruption, are the first source of interpretation of federal statutes, and implement Supreme Court decisions. District judges play an important role in keeping the powers of the federal and state governments in balance and contribute to the protection of constitutional rights by insuring that American governments operate under the rule of law. The district courts are regulators of the market place, facilitators of interstate commerce, protectors of property, and enforcers of federal law.

Why, then, is the literature on the federal district courts produced by legal scholars, political scientists, historians, and journalists so relatively thin?

First, a disproportionate amount of writing on American courts is devoted to the Supreme Court of the United States. Second, while most of the nearly one thousand district judges in the United States each deal with hundreds of cases every year,many cases are not of great significance to the legal or the political system. Furthermore, a study of those district court cases that are of great significance demands knowledge of far more areas of law than the Supreme Court—which primarily deals with constitutional cases, criminal cases, and federal statutory interpretation.

Additionally, while the Supreme Court and the courts of appeals may be studied through judicial opinions (or opinion drafts), much of the work of the district courts is not captured by opinions but buried in lengthy records. A great deal of the important work of district judges lacks a paper trail.It involves the judge’s role in framing, managing and settling cases, his ability to be dignified, fair and efficient in the courtroom, as well as his talent for creating findings of fact that are useful for the court of appeals and, hopefully, that are reversal-proof.

Yet, much has happened in the past three decades to ease the burdens of observers of the district courts. Electronic legal databases permit almost instant compilation of any judge’s complete list of published opinions (as well as unpublished ones that are accessible online). The computer also allows for easy access to newspaper articles discussing trial court proceedings of particular interest to the public. Some circuits even publish weekly compilations of stories from newspapers through- out the circuit, usually including those published at the seats of their district courts.

In addition, circuit and district court historical societies have in recent years stimulated a large number of oral histories of judges, some of which are available online.Ordinarily, the oral histories at least illuminate the judge’s career before appointment to the bench, the appointment process, the transition to the bench, and the nature of the job.Sometimes they do more. There is already one published volume based on such oral histories comparing the experiences of various judges on various subjects.

Furthermore, the publication of a dozen biographies of district and appellate judges—who were elevated from the district courts—over the last thirty years has illuminated the context in which the district judge works.In addition, there are now more than a dozen good substantive histories of individual district courts, most of which were written in the last thirty years.

Yet, the fact that the literature on the federal district courts is so skimpy makes it difficult to judge the quality or influence of a particular judge. If they are remembered at all, it is within their own district or because they “escaped” the district bench and went on to a notable career on the court of appeals (such as Learned Hand or Richard Arnold) or because of their association with one particularly notable trial (such as Harold Medina’s trial of the top leaders of the American Communist Party). One or two may be known for a particular opinion, such as that of Judge John Woolsey of the Southern District of New York when the federal government attempted to prevent James Joyce’s Ulysses from reaching our shores.Finally, there are a very small handful of judges who, because of the extraordinary courage they demonstrated in litigation of enormous political importance, have become icons of judicial independence. The examples that come most rapidly to this observer’s mind are Frank M. Johnson, Jr., and John J. Sirica.

This article is intended to look at the career of one very well- regarded judge through spectacles that offer a different vantage point on a judicial career. Those spectacles—the concept of judicial entrepreneurship—seem to be particularly apt when applied to Judge Jack B. Weinstein. . . . Full Article.

Recommended Citation: Jeffrey B. Morris, Jack B. Weinstein: Judicial Entrepreneur, 69 U. Miami L. Rev. 393 (2015).

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