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Undemocratic Restraint

71 Pages Posted: 4 Jul 2016 Last revised: 21 Apr 2017

Fred O. Smith Jr.

University of California, Berkeley Law School; Emory University School of Law

Date Written: June 30, 2016

Abstract

For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed “prudential” limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch’s avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine.

The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has not eliminated any of these limits. Instead, the Court has recategorized some of these rules as questions of statutory or constitutional interpretation. This raises an important question: When the Court converts prudential limits into constitutional or statutory rules, do these conversions facilitate democracy?

This Article argues that it is unlikely that recategorizing prudential rules will do much to facilitate representative democracy. Worse, constitutionalizing prudential limits reduces dialogue among the branches, and exacerbates some of the most troubling aspects of countermajoritarian judicial supremacy. Further, constitutionalizing judicial prudence has and will make it more difficult for Congress to expand access to American courts for violations of federal rights and norms. When measured against newly constitutionalized limits on judicial power, American democracy is better served by self-imposed judicial restraint, guided by transparency and principle.

Keywords: jurisdiction, democracy, access to courts, constitution, constitutional litigation, constitutional enforcement, Lexmark, Lujan, Spokeo, prudential rules, judicial prudence, Article III, standing, sovereign immunity, abstention, political question, ripeness, dialogue, dialectic, discretion

Suggested Citation

Smith, Fred O., Undemocratic Restraint (June 30, 2016). Vanderbilt Law Review, Vol. 70, No. 3, 2017; UC Berkeley Public Law Research Paper No. 2802781. Available at SSRN: https://ssrn.com/abstract=2802781

Fred Smith Jr. (Contact Author)

University of California, Berkeley Law School ( email )

Boalt Hall
334 North Addition
Berkeley, CA 94720-7200
United States

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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