Federal Courts

The Least Dangerous Branch? Reflections on Bickel’s Classic

Professional Responsibilities & Legal Education Practice Group Teleforum Monday, July 11, 03:00 PMFederalist Society Teleforum Conference Call

The Federalist Society's Teleforum series, Legal Classics Revisited, will consider Professor Alexander Bickel's 1962 book, The Least Dangerous Branch. In a life cut short just before his 50th birthday, Professor Bickel contributed to our understanding of American constitutional law. Among his more provocative concepts was the "counter-majoritarian difficulty." It is not unique to observe that in a nation governed by elected representatives, an unelected Federal judiciary with lifetime tenure represents an anomaly. Alexander Hamilton penned Federalist No. 78 to explain and defend the idea. Professor Bickel takes Hamilton's idea and his title and spends his book exploring the questions: How can an unelected branch of government be a co-equal branch of government? How can society enjoy the benefits of an impartial judiciary without seismic jolting along the fault line between majoritarian and counter-majoritarian institutions? Professor Bickel's questions are still extremely relevant today.


  • Dean Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine
  • James A. Haynes, Attorney and Alternate Judge, U.S. Dept of Labor, Employees Compensation Appeals Board
  • Prof. Ronald Rotunda, Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University Dale E. Fowler School of Law

Simmons v. Himmelreich - Post-Decision SCOTUScast

SCOTUScast 6-15-16 featuring Aaron Nielson
Aaron Nielson June 15, 2016

On June 6, 2016, the Supreme Court decided Simmons v. Himmelreich. This case arose out of lawsuits filed by federal prisoner Walter Himmelreich after he was assaulted by a fellow prisoner. Himmelreich’s initial lawsuit, filed against the United States, was ultimately dismissed pursuant to an exception under the Federal Tort Claims Act (FTCA) for certain discretionary actions by prison officials. While that suit was still pending, however, Himmelreich filed a second suit: a constitutional tort action against individual Bureau of Prisons employees. When Himmelreich’s initial suit was dismissed, these employee defendants argued that his action against them was foreclosed by the FTCA’s “judgment bar” provision, under which a judgment in an FTCA suit forecloses any future suit against individual employees. The District Court granted summary judgment in favor of the employees. On appeal the U.S. Court of Appeals for the Sixth Circuit reversed, holding that the judgment bar provision did not apply to Himmelreich’s suit. The Supreme Court then granted certiorari to resolve a Circuit split on whether the judgment bar provision applies to suits that, like Himmelreich’s, are dismissed as falling within an “exception” to the FTCA.

By a vote of 8-0, the Supreme Court affirmed the judgment of the Sixth Circuit and remanded the case. Justice Sotomayor delivered the opinion for a unanimous Court, holding that the FTCA’s judgment bar provision does not apply to claims dismissed because they fall within an FTCA "exception."

To discuss the case, we have Aaron Nielson, who is Associate Professor of Law at Brigham Young University Law School.

Sturgeon v. Frost - Post-Decision SCOTUScast

SCOTUScast 6-2-16 featuring Gale Norton
Gale Norton June 02, 2016

On March 22, 2016, the Supreme Court decided Sturgeon v. Frost. Sturgeon challenged a National Park Service (NPS) ban on the operation of hovercraft on the National River, part of which falls within the Yukon-Charley River National Preserve. The State of Alaska then intervened, challenging NPS’s authority to require its researchers to obtain a permit before engaging in studies of chum and sockeye salmon on the Alagnak River, part of which falls within the boundaries of the Katmai National Park and Preserve. Sturgeon and Alaska contended that the Alaska National Interest Lands Conservation Act (ANILCA) precludes NPS from regulating activities on state-owned lands and navigable waters that fall within the boundaries of National Park System units in Alaska. The district court ruled in favor of the federal government, and the U.S. Court of Appeals for the Ninth Circuit affirmed that judgment as to Sturgeon but ordered that Alaska’s case be dismissed for lack of standing. The question before the Supreme Court was whether ANILCA prohibits the National Park Service from exercising regulatory control over state, native corporation, and private Alaska land physically located within the boundaries of the National Park System.

By a vote of 8-0, the Supreme Court vacated the judgment of the Ninth Circuit and remanded the case. Chief Justice Roberts delivered the opinion for a unanimous Court, rejecting the Ninth Circuit’s reading of ANILCA. Taken as whole, the Court indicated, ANILCA “contemplates the possibility that all the land within the boundaries of conservation system units in Alaska may be treated differently from federally managed preservation areas across the country, and that ‘non-public’ lands within the boundaries of those units may be treated differently from ‘public’ lands within the unit.”

To discuss the case, we have the Honorable Gale Norton, who served as the 48th U.S. Secretary of the Interior.

Hughes v. Talen Energy Marketing - Post-Decision SCOTUScast

SCOTUScast 5-16-16 featuring James Coleman
James Coleman May 16, 2016

On April 19, 2016, the Supreme Court decided Hughes v. Talen Energy Marketing and several consolidated companion cases. The Court considered whether Maryland encroached on the Federal Energy Regulatory Commission’s (FERC) rate-setting power when directing its local electricity distribution companies, via a “Generation Order,” to enter into a fixed-rate contract with an energy provider selected through a bidding process. The U.S. Court of Appeals for the Fourth Circuit held that Maryland’s Generation Order was preempted by federal law because it effectively set the rates the producer would receive for sales resulting from a regional auction overseen by FERC, and in effect also extended a three-year fixed price period set under the Federal Power Act to twenty years. The questions before the Supreme Court were: (1) Whether, when a seller offers to build generation and sell wholesale power on a fixed-rate contract basis, the Federal Power Act field-preempts a state order directing retail utilities to enter into the contract; and (2) whether FERC’s acceptance of an annual regional capacity auction preempts states from requiring retail utilities to contract at fixed rates with sellers who are willing to commit to sell into the auction on a long-term basis. 

By a vote of 8-0, the Supreme Court affirmed the judgment of the Fourth Circuit. Justice Ginsburg delivered the opinion of the Court, holding that Maryland's regulatory program--which disregards an interstate wholesale rate set by FERC--is preempted by the Federal Power Act, which vests in FERC exclusive jurisdiction over interstate wholesale electricity rates. Justice Ginsburg’s opinion was joined by the Chief Justice and Justices Kennedy, Breyer, Alito, Sotomayor, and Kagan. Justice Sotomayor filed a concurring opinion. Justice Thomas filed an opinion concurring in part and concurring in the judgment. 

To discuss the case, we have James Coleman, who is Assistant Professor at University of Calgary Law School.

The President's Judicial Legacy - Podcast

Litigation Practice Group Podcast
Damien Schiff, Brett A. Shumate May 03, 2016

After almost eight years in office, President Obama’s 322 appointments to the federal courts have already begun to make a substantial impact on the law. In this Teleforum, two litigators talked about whether and how these new judges are shaping the law and the judiciary. They focused in particular on the U.S. Courts of Appeals for the D.C. and Ninth Circuits.


  • Damien Schiff, Principal Attorney, Pacific Legal Foundation
  • Brett Shumate, Partner, Wiley Rein LLP