Fragmenting the Judiciary: Shifting Implementation of Supreme Court Doctrine from Federal Courts to State Courts
26 Pages Posted: 8 Jan 2015
Date Written: September 6, 2014
More than ever, the Supreme Court of the United States can rely on an army of life-tenured judges on lower federal courts to implement the doctrines it develops on statutory and constitutional issues. Those judges are shielded from public opinion on controversial rulings, and recent research shows that the Supreme Court itself is more likely affected by elite opinion than the opinion of the public.
Despite checks and balances being a centerpiece of the constitutional order, the increasing size and jurisdictional scope of the federal judiciary, combined with its lack of political accountability, has led to an increase in the centralization of judicial power in the Supreme Court. However, Congress has the power to limit or even abolish the lower federal courts and, thus, leave the implementation of Supreme Court doctrines to the state courts, which are more accountable to public opinion. This Article examines several separate areas of research to evaluate the probable effects of such an exercise of Congress’s powers, and it looks at the extent that empowerment of state courts can fragment the ability of the Supreme Court to centralize the judicial power of the United States.
Keywords: originalism, originalist, original meaning, jurisdiction, federalism, judges, realism, judicial decisionmaking, judicial politics, law and politics, Supreme Court, judicial psychology, behavioral law and economics
JEL Classification: K10
Suggested Citation: Suggested Citation