Thursday, March 19, 2015
On the twentieth anniversary of United States v. Lopez (1995), this Article revisits the Rehnquist Court’s federalism revolution. Much of what has been said about the federalism cases of the Rehnquist Court misses a fundamental aspect of those decisions — one with profound implications for making sense not just of the Rehnquist era but a large component of the Supreme Court’s work since the earliest days of the Republic. Focusing particularly on Lopez and the follow-up case of United States v. Morrison (2000), the Article offers a new perspective on what the Rehnquist Court was up to. We set forth a practical reading of Lopez and Morrison as cases about docket control. In both cases, we suggest, the Court was concerned with shielding the federal district courts from ever-expanding criminal and civil cases that resulted from new federal laws. The Article shows that from the Court’s perspective, docket control was not simply about keeping the caseloads of the district courts at a manageable level. Instead, quite apart from numbers, the Court was concerned with the particular types of cases Congress wanted the district courts to handle. Congress, the Justices feared, was undermining the prestige of the federal judiciary by blurring the distinction between state and federal judges and turning federal judges into petty magistrates.Docket control was thus about protecting the integrity of the third branch of government — a mechanism, in other words, that began in federalism but served also separation of powers. While we draw on a variety of sources in presenting our account, the Article relies heavily on a rich and surprisingly underused resource: the annual testimony by Supreme Court Justices before congressional committees in support of the Court’s annual budgetary requests. These hearings document candid comments by the Justices on a range of issues, including a deep concern with Congress’s treatment of the lower federal courts. Indeed, read with the benefit of hindsight, the hearings show the Justices shortly prior to Lopez and Morrison forecasting the outcomes in those cases and articulating an overlooked rationale underlying the decisions.
Our account provokes a rethinking of the constitutional justification for Lopez and Morrison (and other federalism decisions of the Rehnquist Court). The two cases, we show, represented the culmination of more than a century of efforts by the Supreme Court to safeguard the role of the judicial branch in our constitutional system. Doctrinally, Lopez and Morrison involved questions of the scope of congressional power and the degree of deference courts owe to Congress when it legislates. By centering on these issues, however, debate over the outcomes in Lopez and Morrison has overlooked a more basic justification for the Court’s rulings. When the Court acts to protect the judiciary — and particularly when it does so after repeated requests to Congress for help — it is on firmer constitutional ground than critics of Lopez and Morrison have recognized. At the time of Lopez and Morrison, the courts were under considerable stress and there was no indication that Congress — continuing to create new federal causes of action — would provide relief. Under those circumstances, the Court’s response, invalidating one criminal statute (in Lopez) and one civil cause of action (in Morrison), was less revolutionary than preservationist.
The significance of our account extends beyond explaining a single episode in the history of the Supreme Court. Once cast in terms of docket control, Lopez and Morrison represent not a break — revolutionary or otherwise — but the culmination of a much longer history of over-burdened (and under-appreciated) federal judges pushing back against demands to perform tasks that would distract them from their core functions under the Constitution. Apart from the federalism decisions of the Rehnquist Court, many cases — many landmark cases — are better understood in the new light of docket control. (Yes, we even offer a new reading of Marbury v. Madison.) While at first blush docket control may seem less exciting than other accounts of Supreme Court cases, it helps make sense of a good deal of what the Court does and it provides a new lens through which to examine and assess judicial decision-making.