Judicial Oversight in Two Dimensions: Charting Area and Intensity in the Decisions of Justice Stevens

Abstract:     
Federal judges can construct their relationship with other government institutions in many different ways. This paper identifies two dimensions along which that association can be defined: (1) the total area in which courts might substitute their judgment for that of other officials, and (2) the average intensity of judicial review within that area. The decisions of Justice Stevens illustrate that the values on these two axes need not move together. Courts might, for example, exchange intensity for area and thus engage in relatively deferential review across a wide range of government activity. Doing so enhances the judiciary's ability to vindicate the unlikely claim of an injured citizen and to prevent official wrongdoing from migrating to unmonitored areas - and yet the model prevents courts from dominating other institutions or disregarding their considered, expert, and politically accountable judgment. This large-area/low-intensity combination has significant drawbacks, however. It might unduly escalate decision costs, especially for officials not sitting on the Supreme Court. But there is a set of assumptions on which the model might make sense, and the paper closes by briefly identifying them.

Number of Pages in PDF File: 30

Keywords: judicial review, oversight, jurisdiction, deference, stevens

Accepted Paper Series