Beyond Judicial Activism: When the Supreme Court is No Longer a Court

54 Pages Posted: 8 Mar 2011 Last revised: 14 Apr 2012

See all articles by Margaret L. Moses

Margaret L. Moses

Loyola University Chicago School of Law

Date Written: December 1, 2011


Our Supreme Court, in recent decisions, has reached out beyond the cases that were put before it by litigants to decide issues that were not in dispute between the parties. The four Supreme Court decisions discussed in this article, Citizens United v. FEC, Ashcroft v. Iqbal, Montejo v. State of Louisiana, and Gross v. FBL, have frequently been criticized because of the changes in law they effected; this article, however, focuses on the process. When the Court decides its own questions, rather than those presented by the parties, it does so without the benefit of a record created below on the question, without the opinions of lower court judges, and sometimes without the briefing of the issue by the parties or amici. In the cases discussed, the Court has also ignored traditional prudential practices, such as the avoidance canon for constitutional issues, the refusal to consider issues neither pressed nor passed upon below and the rejection of issues raised for the first time in Respondents' merits brief. It has also failed to follow its own Court Rules. In effect, the Supreme Court has acted without boundaries of any kind. In so doing, it is not acting as a court. This article proposes that there should be boundaries that the Court is required to meet, and that those boundaries should be imposed by Congress, under the Exceptions Clause of Article III. The purpose would be to make judicial conduct consistent with the structure that the Constitution sets forth for the role of the judiciary. To the extent that no boundaries exist, the Justices become simply politicians in robes.

Keywords: Constitutional Law, Supreme Court, Jurisdiction, Exceptions Clause, Cases and Controversies

JEL Classification: K10, K40, K41

Suggested Citation

Moses, Margaret L., Beyond Judicial Activism: When the Supreme Court is No Longer a Court (December 1, 2011). University of Pennsylvania Journal of Constitutional Law, Vol. 14, No. 1, p. 159, October 2011, Loyola University Chicago School of Law Research Paper No. 2011-008, Available at SSRN:

Margaret L. Moses (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States
312-915-6430 (Phone)
847-475-8984 (Fax)

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