The Structural Case for Vertical Maximalism

Abstract:     
Many prominent jurists and scholars, including those with outlooks as diverse as Chief Justice John Roberts and Cass Sunstein, have recently advocated a “minimalist” approach to opinion writing at the Supreme Court. They assert that the Court should issue narrow, fact-bound decisions that do not resolve much beyond the case before the Court. I argue that minimalism, as employed by the current Supreme Court, is in tension with the constitutional structure. Article III and the Supremacy Clause, along with historical evidence from the founding era, suggest that the Constitution creates a hierarchical judiciary and gives the Court a “supreme” role in defining the content of federal law. But the Court today is limited in its capacity to perform that function, because it can review only a fraction of the lower federal and state court cases involving federal law. I argue that the Court should therefore make the most of the cases it does hear by issuing broad decisions that govern a wide range of cases in the lower courts. I call this approach “vertical maximalism.” (Notably, I use the term vertical maximalism to emphasize that such broad decisions need not interfere with democratic processes, but could direct all lower courts to defer to the political branches.) Minimalism, by contrast, undermines the Court’s capacity to perform its “supreme” role in the judiciary. When the Court issues a minimalist opinion, it leaves much to be decided by the lower courts in future cases, and thereby delegates its supreme law declaration function to its judicial inferiors. Such delegation undermines the hierarchical judicial structure created by the Constitution.

Number of Pages in PDF File: 60

Keywords: Supreme Court, federal jurisdiction, constitutional law

Accepted Paper Series