The Cycles of Separation-of-Powers Jurisprudence

Abstract

The Supreme Court’s approach to the Constitution’s separation of powers is a puzzle. Although all Justices appear to agree on the doctrine’s goals, in almost every important line of cases the Court oscillates between two basic approaches of hard-edged rules and open-textured standards. Its seemingly erratic shifts cannot be wholly explained by changes in the bench’s personnel or methodological fads. This Article isolates and analyzes pervasive doctrinal cycling between rules and standards as a distinctive element of separation-of-powers jurisprudence. Breaking from previous scholarship critical of the Court’s zigzagging, we consider whether purposeful cycling between rules and standards might be justified as a judicial strategy for implementing the separation of powers. We develop a new theoretical account of the separation of powers in which doctrinal cycling can be justified on two key assumptions: First, the separation of powers promotes a plurality of normative ends, and second, it does so in the context of a more heterogeneous institutional environment than a focus on the three branches alone would suggest. Doctrinal cycling between rules and standards could be used, at least in theory, to manage normative pluralism and police this “thick political surround” when simpler, more straightforward regulatory strategies would fail. This rational reconstruction of the feasible judicial role in the separation-of-powers context provides a benchmark for evaluating observed doctrinal oscillations, and, more generally, determining whether courts possess the necessary institutional resources to promote separation-of-powers values.

Keywords: separation of powers; administrative law; constitutional law