Law & Society Blog

Both Larry Solum and Brian Tamanaha have posted thoughtful comments regarding Justice O’Connor’s resignation. Both are concerned that we will soon witness an all-out war over her replacement, focused squarely on the ideology of the appointee, as opposed to, say, genuinely judicial virtues such as a demonstrated history of impartiality and fairness. And, of course, they are both right, because, as Solum points out, in so many instances, O’Connor was the court.

The root of the problem is that the Supreme Court is simply too powerful an institution. The court overpowers the law. Of course it matters whether the next appointee is virtuous in Solum’s sense rather than a party delegate, but the fact remains that constitutional adjudication has been and will always be political adjudication. Constitutional courts are arguably shared institutions, in that they operate both within the legal and the political system.

The legal system works best where there are many courts, many cases, many decisions, and no centralized ??ber-court. The unity of the legal system, seen from an internal point of view as a hierarchical system of rules, is guaranteed by the constitution as the highest set of legal norms. But that normative hierarchy, with its single ultimate focal point, does not mandate a similarly centralized institutional structure with one highest court on top. In fact, the power given to individual courts (as opposed to all courts in the aggregate) may well be inversely related to the significance of the rule of law.

A step toward strengthening the rule of law would be to make the Supreme Court into a constitutional court proper, that is, a court that deals with constitutional questions only. Of course, many of those questions would be as divisive as ever, but at least it would help to contain the spill-over effects into areas of the law that can ordinarily be dealt with at a sub-constitutional level, such as tax or antitrust. Having a political court decide every question of federal law has the very real potential to transform the entirety of the federal laws into political law. Of course, our federal system requires normative unity among and between circuits, so there would be a need for a handful of sister courts to the Supreme Constitutional Court, such as a Supreme Administrative Court, a Supreme Civil Court, a Supreme Criminal Court, and maybe one or two in addition to that. The Supreme Constitutional Court would remain primus inter pares, because some of the “really hard” criminal, civil, or administrative cases may well turn out to require constitutional adjudication, but one would expect a certain reluctance on the part of the Supreme Constitutional Court to hear matters that have been decided by one of its sister courts. Over time, a profile of genuine constitutional matters would emerge, and such matters would become the genuine realm of the Supreme Constitutional Court’s jurisprudence.

Of course, judges should be virtuous in the sense that Solum proposes and rightfully demands. But institutions should be set up in a manner that we don’t have to rely on just that.

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