Judicial Minimalism in the Lower Courts
85 Pages Posted: 1 Sep 2021 Last revised: 31 May 2022
Date Written: August 30, 2021
Debate about the virtues and vices of “judicial minimalism” is evergreen. But as is often the case in public law, that debate so far has centered on the Supreme Court. Minimalism arose and has been defended as a theory about how Justices should judge. This Article considers judicial minimalism as an approach for lower courts, which have become conspicuous and powerful actors on the public law scene. It begins by offering a framework that disentangles the three basic meanings of the term “judicial minimalism”: decisional minimalism, which counsels judges to decide cases on narrow and shallow grounds; prudential minimalism, which counsels judges to avail themselves of various techniques of not deciding cases (the so-called “passive virtues”) on grounds of prudence; and Thayerian minimalism, which counsels judges to refrain from invalidating the actions of the political branches except in cases of clear illegality. The Article then argues that several institutional features of lower courts make judicial minimalism in most of its forms a particularly compelling ideal for lower court judges. Further, attending to the differences between the lower courts and the Supreme Court reveals that minimalism is in tension with the institutional logic of the Supreme Court. In all, the Article aims both to clarify the concept of minimalism and to place it in its proper institutional home. After making the case for lower court minimalism, the Article proposes some strategies for realizing it: First, developing a concept of judicial role fidelity that is tailored to the institutional realities of lower courts, and second, reforming case assignment rules, nationwide injunctions, and the size of the federal bench to help channel lower courts toward more minimalist outcomes.
Keywords: judicial minimalism, minimalism, lower courts, courts of appeals, circuit courts, district courts, federal courts, passive virtues, public law, constitutional theory, bickel, thayer, supreme court, nationwide injunctions
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