Revisiting The Essential Functions Thesis: A Structural Account Of The Supreme Court's Roles

64 Pages Posted: 26 Mar 2025

See all articles by Curtis Bradley

Curtis Bradley

The University of Chicago Law School

Neil Siegel

Duke University School of Law

Date Written: March 25, 2025

Abstract

One of the most famous structural arguments in the field of federal courts is the "essential functions thesis." The thesis, which has been endorsed by a number of prominent scholars and the executive branch, posits that there are implicit, structural limits on Congress's authority to "strip" the Supreme Court of its appellate jurisdiction. Court-stripping, the thesis contends, is not allowed if it would undermine the essential functions of the Court-in particular, maintaining the supremacy and uniformity of federal law. In this Article, we revisit that thesis with three goals in mind. First, we aim to show that the structural arguments underlying the essential functions thesis are relevant to the debate over whether Congress can permissibly "pack" the Court-that is, add Justices to seize ideological control of the institution. Supporters of the essential functions thesis have tended to assume that packing the Court must be constitutionally permissible. In making that assumption, they have mostly resorted to a formalist, textualist frame, a posture that seems puzzling because they do not adopt such a frame in addressing Courtstripping. Second, we contend that the literature has defined the Court's essential functions too narrowly. As we show, the structural rationales that explain why the supremacy and uniformity of federal law are essential functions also suggest other essential functions. Those additional functions, in turn, provide yet another ground for questioning the permissibility of Court-packing. Third, we use the example of the essential functions thesis to invite deeper scholarly consideration of the nature of structural constitutional reasoning and how it should be done, subjects that have received insufficient attention both on the Supreme Court and in the literature. For several reasons, including newfound anxiety over executive branch compliance with adverse judicial decisions, the issues analyzed in this Article are vitally important today.

Keywords: federal courts, essential functions thesis, court packing, federal court jurisdiction

Suggested Citation

Bradley, Curtis and Siegel, Neil, Revisiting The Essential Functions Thesis: A Structural Account Of The Supreme Court's Roles (March 25, 2025). Duke Law School Public Law & Legal Theory Series No. 2025-16, Available at SSRN: https://ssrn.com/abstract=5194681 or http://dx.doi.org/10.2139/ssrn.5194681

Curtis Bradley (Contact Author)

The University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Neil Siegel

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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