Unconstitutional Courses

54 Pages Posted: 18 Apr 2007

See all articles by Frederic Bloom

Frederic Bloom

University of Colorado Law School


By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this article asserts, the Court reshapes and abuses the "judicial Power" - not through bold pronouncements or obvious doctrinal revisions, but through something more inconspicuous, more discreet: the prescription of unconstitutional decisionmaking procedures. These decisionmaking procedures - what this article calls "unconstitutional courses" - have attracted little sustained attention; their unexpected source and their subtle form make these "courses" too easy to ignore. Yet where Congress has so often failed, the Court has quietly succeeded. By charting "unconstitutional courses," the Court has refashioned the "judicial Power" in an untenable way.

To show how, this article examines what "unconstitutional courses" are, when the Court has charted them, and why these "courses" merit consideration. As a part of this analysis, this article identifies two "unconstitutional courses," one historic and one contemporary. The first "course" grows out of Swift v. Tyson, a well-known (if long-derided) discussion of federal common law; the second emerges in Williams v. Taylor, a significant chapter in the story of contemporary habeas law. Both Swift and Williams illustrate the importance of how courts make decisions - what law they consider, what facts they ignore, what analytical steps they take. Both Swift and Williams demonstrate the impact a court's decisionmaking "course" may (and does) have in resolving individual disputes and in shaping the "judicial Power." And both Swift and Williams exhibit the need to examine the Court's less obvious threats to individual rights - and to itself.

Keywords: Federal Courts, Procedure, Litigation, Supreme Court, Judicial Power

Suggested Citation

Bloom, Frederic, Unconstitutional Courses. Washington University Law Review, Vol. 83, No. 6, p. 1679, 2005 (formerly Washington University Law Quarterly) , Available at SSRN: https://ssrn.com/abstract=981008

Frederic Bloom (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

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