Bench Memos

Fighting Judicial Supremacy By “Jurisdiction Stuffing”

On the Mirror of Justice blog, law professor Kevin C. Walsh has an interesting post recommending “jurisdiction stuffing” legislation as a means of combating the “problem of judicial supremacy.”

Unlike jurisdiction-stripping legislation, which would remove specified categories of cases from federal-court jurisdiction (and which, as Walsh points out, rarely gets enacted and might not be very effective), jurisdiction-stuffing legislation would, for some categories of cases, displace the Supreme Court’s discretionary certiorari jurisdiction with mandatory appellate jurisdiction. (In other words, in those categories of cases, it would confer on the losing party below a right of appeal to the Supreme Court.) An excerpt:

Jurisdiction stuffing would likely moderate the Court’s willingness to introduce major changes into constitutional doctrine in areas where they have mandatory appellate jurisdiction. This just makes more work for them. And knowing that will force them to confront directly the unsettling effects of their interventions. More broadly, jurisdiction stuffing could have a beneficial effect of making the Supreme Court more like a court. Most courts don’t enjoy the freedom to set their own agenda the way that the Supreme Court does. In a world of judicial supremacy in which supremacy is not going away, the best strategy may be to try to make it more judicial in nature. 

All of the Justices, to varying degrees and in varying ways, are too much “big-picture-only” people in too many ways to be good judges in their big-picture-only world. One way of counteracting this is to force more immediate confrontation with the nitty gritty of how their big-picture pronouncements are supposed to be implemented doctrinally. Want to hold mandatory state sentencing guidelines unconstitutional? Well, the federal guidelines cases will be coming fast and furious. Want to insist on federal judicial supervision of detention at Guantanamo? Every single appeal of the denial of habeas relief is coming your way soon. Want to revive the Second Amendment and recognize a right to gun possession in the home? The gun possession in public cases are right around the bend. Want to redefine marriage? The cases that ripple out from that intervention will be on your desk later this year. And so on. 

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