How the Supreme Court's Conception of Its Role Contributes to the Deformation of the Constitution

The Court's law-declaration approach not only departs from its dispute-resolution premise but risks yielding a faulty product.

[The last of four blog posts drawing on this week's Hallows Lecture at Marquette Law School.]

This final blog post about the role of unstated legal ideas in deforming the Constitution involves a third unstated idea, beyond either the part played by the "three buckets" idea, combined with the "unitary executive" theory, or the contributions of various delegation theories. This unstated idea concerns the Supreme Court's conception of its role.

Students of the Court have identified two polar ideas about how the Court conceives of its role. One, which should be familiar, is called dispute resolution. The Court conceives of its job as resolving disputes between adverse parties, especially when the lower courts have disagreed about the proper disposition of the matter. The second, which commentators have labeled "law declaration," conceives of the Court's role as identifying certain important legal issues and resolving those issues without actually deciding disputes between adverse parties; instead, the Court concentrates on clarifying contested questions about the law and lets the lower courts sort out how to apply the law in the case at hand.

The Court's conception of its role in its recent opinions must be regarded as mixed; if one were in the mood to be uncharitable, one might call it schizophrenic. On the one hand, the Court insists that the authority of federal courts must be confined to resolving disputes. This is encapsulated in the law of standing. Federal courts, including the Supreme Court, can only hear actual cases and controversies between adverse parties. The plaintiff must show that it has suffered an injury that is concrete and particularized and actual or imminent, the defendant's action caused the injury, and a ruling for the plaintiff would make the injury go away. Every term, the Court declines to decide one or more cases for failing to qualify for standing under this elaborate matrix of factors.

On the other hand, once the Court concludes that the standing requirements have been met, it increasingly shifts to the law-declaration mode. The Court grants review only in cases presenting questions of general importance, it concentrates on resolving those questions, and having done so it sends the case back to the lower courts to apply the new or clarified understanding of the law to the facts presented by the case.

In effect, the Court proceeds in the dispute-resolution mode during the windup, and then shifts to the law-declaration mode in delivering the pitch. That this is the proper way for the Court to proceed is an unstated idea that has never expressly addressed or defended.

I will not say much about the windup aspect of this mixed conception of the Court's role, other than to note that the law of standing has become so complex and unpredictable that it serves primarily as a docket-control device. One day the Court decides that it wants to decide whether the government can cancel student loans. Another day it decides that it does not want to decide whether government pressuring social media firms to censor speech violates the First Amendment. And so forth.

As to the law-declaration mode that increasingly prevails when delivering the pitch, there are several reasons for concern. One is that this encourages the Court to make broad pronouncements about the law, in a way that may overlook certain nuances or complications that would be revealed if the Court actually undertook to decide the case.

A good example might be Loper Bright Enterprises v. Raimondo (2024), where the Court offered a detailed exposition of the dispute that gave rise to the case, but then proceeded to ignore that dispute and discoursed in very broad terms about the proper relationship between courts and agencies in resolving questions of law. The broad holding was that courts must exercise independent judgment about the meaning of the law in every case, and should not defer to agency interpretations except in limited circumstances. The Court then remanded to the lower courts to apply the new understanding.

If the Court had actually applied the new regime to the case at hand, it would have had to struggle with a rather knotty legal problem and grapple with some serious practical considerations. Who knows? Perhaps this might have produced a more qualified ruling. In all events, it would have been a more illustrative one.

A more serious concern is that the law-declaration mode casts the Court in the role of lawmaker. To be sure, the Court generally frames its exercises in lawmaking as interpretations of enacted laws, either the Constitution or some federal statute. But as these enactments become more infrequent and increasingly remote in time, the Court inevitably relies on cobbling together pronouncements appearing in its own past decisions. In so doing, the Court increasingly takes on the aspect of a Council of Revision, something the framers of the Constitution specifically rejected.

Flexing its law-declaration muscles, the Court becomes an ever-more consequential policymaker, occupying territory previously belonging to Congress or the states. Not across the board. For the most part, the Court leaves foreign and military policy to the President, as well as economic regulation, and confines itself to domestic affairs, especially questions of social policy. But it is not too far-fetched to see where this might be headed: foreign, military, and economic policy run by an imperial presidency, and social policy run by a Council of Revision called the Supreme Court. Whether or not this makes sense as a division of governmental authority, it bears little resemblance to the framework established by the Constitution.

Perhaps the greatest risk posed by the Court's turn to the law-declaration mode is that a powerful President may someday call its bluff. Over the years, a number of thoughtful observers, including Abraham Lincoln, have concluded that the Executive has an unyielding duty to obey judgments rendered by courts, but is free to disagree with the explanations for those judgments given in the courts' opinions.

By adopting the law-declaration mode, the Supreme Court has implicitly decided that it does not do judgments. What matters is the view of the law expressed in its opinions. Indeed, the Court has come to regard its opinions as a type of law, binding on lower courts and other government and nongovernment actors alike.

This raises the danger that some self-confident President will simply refuse to comply with the Court's view of the law as expressed in its opinions. It is not even clear that the President would be wrong to do so. The U.S. Marshal's office has a statutory duty to enforce judgments, not opinions. Indeed, it is possible—I have no proof of this—that the Court is already sufficiently anxious about this happening that it has gone out of its way to avoid crossing the President. If so, there goes another possible constraint on the President and a deformation of the Constitution.

As I said at the outset, there are many possible explanations for the decline of Congress and the rise of the President and the courts. Perhaps the unstated legal ideas I have discussed are merely rationalizations for the deformation of the Constitution brought about by these other forces. But I think ideas have consequences.

The three buckets idea has resulted in the assumption that the President must be in charge of everything not given to Congress or the courts, and has been invoked repeatedly to augment the power of the Presidency.

The unstated idea that legislative power can be delegated to the Executive, but Congress cannot give power to itself to check the Executive, has created a one-way ratchet expanding the power of the President and sidelining the role of Congress in constraining the President.

The Supreme Court's turn to the law-declaration mode in deciding cases has given it authority over matters of social policy formerly enjoyed by the people or the legislatures, but in so doing has rendered the authority of the Court itself precarious.

It is quite important that these ideas be exposed and debated. Otherwise, we have no realistic hope of restoring the oldest continuing Constitution in the world to its recognized form.

[The full text of Professor Merrill's Hallows Lecture can be read here.]