Academic

Roberts on Federal Judicial Power in an Asymmetric World

By Lawrence Solum

Caprice L. Roberts (West Virginia University College of Law) has posted Asymmetric World Jurisprudence (Seattle University Law Review, Vol. 32, No. 569, 2009) on SSRN. Here is the abstract:

An asymmetric world - marked by gross imbalances of power and unconventional tactics - requires that we regularly reexamine federal judicial power and its limits. Now, more than ever, the jurisdiction and justiciability doctrines cannot remain static. Since 9/11, the judiciary's coequal branches of government have flexed significant political muscle in waging the global war on terror. These congressional and executive actions have direct and indirect consequences on the rule of law and on constitutional rights. Such consequences place special importance on the Supreme Court's essential function of safeguarding constitutional protections.

This Article accepts the invitation to think boldly about our judicial vision. The world's asymmetric reality dictates reviewing doctrines of judicial restraint. The reexamination should cover popular approaches as well as judicially created restraints, including judicial minimalism, hostility to litigation, and the prudential justiciability doctrines. These doctrines of restraint seek to serve laudable purposes, including respecting other branches' spheres of legitimate control and preserving scarce judicial resources. Such doctrines foster an environment in which the Supreme Court hears fewer cases and often limits the substantive reach of those cases. This Article assumes that the Court will maintain or continue to shrink its docket.

As a global theory, this Article offers a judicial dynamism model, which permits the Court to reexamine prudential doctrines of restraint such as political questions. When individuals raise concrete infringements of constitutional rights, the Court should analyze the alignment of the other two branches in order to inform the Court regarding which is more prudent-exercising or avoiding review. In particular, the Court's duty to serve as a check may be heightened when Congress and the President act in concert to exert power based on exigencies and impinge on individual rights. Although the existence of separation of powers tensions places the Court in a precarious position, it should speak clearly, and perhaps more than incrementally, to protect the Constitution when necessary.

Full post as published by Legal Theory Blog on April 07, 2009 (boomark / email).