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and Republican judges favored policy positions less disruptive of the status quo than the
alternatives when the alternatives would have significantly disrupted sentencing procedures in
the district courts. This is most clear with respect to the unanimity of the circuits in rejecting the
argument that drug quantity is always an element of the offenses defined by § 841. This
preference for less disruptive options is also clear in their virtual unanimity in upholding the
constitutionality of § 841 and in rejecting the application of Apprendi to the Sentencing
Guidelines. Any one of these holdings would have unsettled procedures and created a great deal
of uncertainty in the lower courts.
On the other hand, when the more disruptive alternative would mostly have short-run
consequences for the district courts, the Democratic judges were more willing than Republican
judges to make it easier for those claiming an Apprendi to win relief under the plain error
standard of review. The same is true with respect to applying Apprendi to mandatory minimum
sentences under § 841.
II. Constraints, Goals, and Disruptive Precedents
A. Constraints on Circuit Judge Policy-Making Discretion
The first step in studying policy-making on the courts of appeals is identifying when
circuit judges have the opportunity to engage in such policy-making, i.e., those cases in which
the judges involved actually exercise policy-making discretion rather than apply pre-existing
rules to the facts of the case. The opportunities of circuit judges to make policy are more
constrained than those of Supreme Court justices in large part because of the binding nature of
Supreme Court precedent on the courts of appeals. If the Supreme Court has already made
policy by announcing legal rules to govern a particular area, then circuit judges will not have a
similar opportunity to make policy in that area. The norm of vertical stare decisis requires that
Convention