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Undemocratic Restraint

PDF · Fred O. Smith, Jr. · Apr-20-2017 · 70 Vand. L. Rev. 845 (2017)

Undemocratic Restraint

ABSTRACT

     For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed prudential limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch’s avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine.
     The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has not eliminated any of these limits. Instead, the Court has recategorized some of these rules as matters of statutory or constitutional interpretation. This raises an important question: When the Court converts prudential limits into constitutional or statutory rules, do these conversions facilitate democracy?
     This Article argues that recategorizing prudential rules does little to facilitate representative democracy, and in particular, constitutionalizing prudential limits raises acute democratic concerns. Constitutionalizing jurisdictional limits reduces dialogue among the branches and exacerbates some of the most troubling aspects of countermajoritarian judicial supremacy. Further, constitutionalizing judicial prudence has and will make it more difficult for Congress to expand access to American courts for violations of federal rights and norms. When measured against newly constitutionalized limits on judicial power, American democracy is better served by self-imposed judicial restraint, guided by transparency and principle.

AUTHOR

Visiting Professor, Emory Law School. Assistant Professor, Berkeley Law School.

 



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