Academic

Beermann on the Supreme Court

By Lawrence Solum

Jack Michael Beermann (Boston University School of Law) has posted The Supreme Common Law Court of the United States on SSRN.  Here is the abstract:

The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those provisions are advanced by minorities and other disadvantaged groups. Second, it has construed Congress's power to create rights narrowly, holding unconstitutional many efforts by Congress to either expand the rights of minorities and other disadvantaged groups, or to create new rights for such people. Third, the Court has construed civil rights statutes narrowly, often provoking legislative responses by Congress. Fourth, the Court has construed some constitutional provisions broadly in order to take control of areas of the law that had been thought of as within the control of the states. Fifth, the Court has expanded the scope of federal preemption of state law which results in reducing the sphere governed by state common law. While these devices do not all necessarily result in taking the law in a conservative direction, by and large that has been the use to which the Court has put them.

One way in which the Court has advanced its agenda is by seizing power that, under federalism traditions, belong to state courts and state legislature. In several senses, the Supreme Court has begun to function like a Supreme Common Law Court of the United States. First, despite all of its federalism rhetoric, the Court seizes control of areas of the law that have traditionally been the domain of the states and imposes federal norms that is has created for the purpose. Second, the Court applies interpretive methods, in both constitutional and non-constitutional cases, that draw from traditional common law methodology and allow for a high degree of creativity.

Full post as published by Legal Theory Blog on July 22, 2008 (boomark / email).