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This Article considers when optional case citations may do more harm than good. There are valid reasons for citing to non-binding precedent—to promote consistency in the law, for example, or to avoid wasteful redundancy. But unconsidered invocations of non-binding authority may also introduce error into individual opinions and distort the path of the law over time. This Article catalogues such dangerous citations as used in particular by federal district courts citing to other federal district courts with three goals in mind: to help judges use non-binding authority constructively, to help law clerks think critically about their citation practices, and to help readers of judicial opinions question the rhetoric of constraint.

In mapping these problematic uses of non-binding authority, the Article distinguishes between poorly conceived citations and poorly implemented citations. Poorly conceived citations are those for which non-binding precedent is simply not a useful authority. Examples of poorly conceived citations include reliance on prior opinions to establish facts or the content of another sovereign’s laws. Poorly implemented citations are those for which non-binding precedent may be relevant but should be selected and applied with care. Examples of poorly implemented citations include over-extended analogies and reliance on judge-made tests that are misaligned with the question being evaluated. This catalogue of poorly conceived and poorly implemented citations surfaces some common themes, including the need for better-designed tests and the challenges posed by modern research methods. But dangerous citations are not simply a matter of inadvertence, carelessness, or mistake; they may also be deployed for rhetorical purposes, in particular to signal legitimacy and restraint. The Article thus ends with a warning against “performative judging,” or the use of excessive citations to suggest greater constraint than the law in fact provides. Such citations are dangerous not just for the error they may introduce, but also because they obscure judicial choice and the inherently discretionary nature of judging.

Text in Article III of the U.S. Constitution appears to give to Congress authority to make incursions into judicial supremacy, by restricting (or, less neutrally, “stripping”) the jurisdiction of federal courts. Article III gives Congress authority to make “exceptions” to the Supreme Court’s appellate jurisdiction. Article III also gives Congress discretion whether to “ordain and establish” lower federal courts. Congress’s power to create or abolish these courts would seem to include the power to create them but to limit their jurisdiction, and that is how the power has historically been understood.

Is Congress’s power to remove the jurisdiction of federal courts in effect a legislative power to choose the occasions on which federal courts may, and may not, have the final word on the meaning of the Constitution? That is a question on which the Supreme Court has never spoken definitively.

In this Article I argue that Congress, working through the ordinary legislative process, may remove the jurisdiction of federal and even state courts to hear cases involving particular questions of federal law, including cases that raise questions under the Federal Constitution. Understood this way, the implications of Congress’s Article III power are profound. Congress may prescribe, by ordinary legislation, constitutional rules in areas where the meaning of the Constitution is unsettled. Or it may displace otherwise settled constitutional rules by ordinary legislation.

To be clear, Article III does not permit Congress to escape accountability. Rather, Article III gives to Congress the power to choose whether it must answer, in a particular instance, to judges or to voters. Compared with judicial review, the political constraint is, of course, less formal and predictable. But that does not mean that the political constraint is weak. A successful exercise of its Article III power will require a majority in Congress, and, in most instances, a President, who agree both on the substantive policy at issue and on the political viability of overriding the public expectation that Congress should face a judicial check. In such instances, we should welcome the exercise of Congress’s Article III power. In the push-and-pull between judicially-enforced constitutional rules and the desires of current democratic majorities, the potential for Congress’s exercise of its Article III power helps legitimate both constitutionalism and judicial review.