Inverted Judicial Guardianship
66 Pages Posted: 5 Jan 2021 Last revised: 6 Jan 2021
Date Written: December 16, 2020
This article analyzes the phenomenon of inverted judicial guardianship, a key dynamic in contemporary U.S. constitutional adjudication. Inverted judicial guardianship refers to the dynamic in which lower federal courts play a more activist and assertive role in challenging the exercise of government power in the area of rights and equality than the U.S. Supreme Court. The article traces this dynamic through an in-depth analysis of the sequence of judicial battles between lower federal courts and the Supreme Court in Trump v. Hawaii (2018) over the scope of executive power in immigration policy and protections for individual rights. In Trump v. Hawaii, lower federal courts served as front-line constitutional guardians by ruling against and checking federal power, only to be ultimately overruled by the Supreme Court based on the application of more deferential approaches.
The article challenges prevailing assumptions about the top-down nature of judicial supremacy and the nature of the judicial role in identifying key attributes of inverted judicial guardianship: constitutional narrowing of claims, diminishing rights narratives, and inverted assertiveness. The article then provides an explanatory account of the factors that drive inverted judicial guardianship by drawing on regime politics, legal-institutional, and strategic models, illustrating how inverted judicial supremacy is more prevalent under certain political and structural conditions. It concludes by suggesting that inverted guardianship has important implications for separation of powers, federalism, and the ability of rights and social movements to effect reform and social change, and arguing that inverted judicial guardianship may encompass a broader range of patterns of Supreme Court-Lower Court interaction and forms of lower court assertiveness involving rights and equality cases at both the federal and state court level.
Keywords: U.S. Supreme Court, Constitutional Law, Rights, Equality, Constitutional Guardianship, Lower Courts, Federal Courts, Appellate Courts, District Courts
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