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This chapter focuses on the empowerment of the federal judiciary from the Compromise of 1850 (admitting California into the Union as a free state and unofficially signifying the beginning of the political crisis leading to the Civil War) to the Compromise of 1877 (settling the disputed 1876 presidential election between Samuel J. Tilden and Rutherford B. Hayes and representing the formal end of Reconstruction). The chapter asks why judicial institution building was pursued, how it was accomplished, and what it achieved within the context of mid-nineteenth century American politics. It examines the role of Republicans in Civil War and Reconstruction era institution building and how it resulted in a significant expansion of federal judicial power. It also considers the four stages in which the substantial empowerment of the judiciary occurred during the period, including the consolidation of a Republican-friendly Supreme Court through ameliorative reforms aimed at specific problems of judicial performance.

Some have suggested that we must define good judging before we begin studying, evaluating, and reforming judicial decision making. This chapter argues that this view is understandable but questions whether it is possible, or necessary, or even helpful, to start with this task. When we are thinking about what research should be done concerning judges and judicial decision making during the next decade, and what improvements to our justice system might result from that research, what seems like the most logical place to start may delay our departure and lead us in the wrong direction. We need the dedication and courage to pursue openly a painstaking interdisciplinary inquiry into the question of how best to structure the process of judicial decision making and then implement reforms based on what we learn. And we need to get started right away.

We argue that expert performance is not best understood and assessed in terms of general characteristics applying across all domains. Rather, it should be analyzed in the context of the specific tasks that experts in a particular domain are called on to accomplish. Drawing on a substantial line of research from psychology, we argue that considerable empirical evidence supports this domain-specific view of expert competence, that there are reasons to believe this view holds with respect to court judges, and that, to be as fair and useful as possible, assessments of judicial performance should incorporate this view.

This chapter argues, through an analysis of the history of the professional backgrounds of the Court of Justice, that the absence of a clear vision for the function and direction of the Court of Justice at the stage of selecting and appointing its judges results in the Court of Justice setting its own tasks for itself. These tasks invariably reflect the prevailing professional disposition of the Court at the time. To substantiate this argument, the chapter divides the history of the Court of Justice into four periods: the transitional period up until 1970; the subsequent period up until the ratification of the Maastricht Treaty; the period beyond that until the ratification of the Lisbon Treaty; and the period since the Lisbon Treaty. In each of the periods examined in turn, a correlation between the professional backgrounds of the judges at the Court at that time and the type of decisions the Court produces is outlined.