Tuesday, July 05, 2005

The Supreme Court: Where’s All the Power?

Daniel Solove

I’m growing weary of all the talk of the Supreme Court’s magnificent power. Consider this quote by Hanno Kaiser of Law & Society Weblog: “The root of the problem is that the Supreme Court is simply too powerful an institution. The court overpowers the law.” Really? I beg to differ. In reality, the Supreme Court doesn’t wield a lot of power. It’s bark is far louder than its bite has ever been. My co-blogger Mark Tushnet has related thoughts on the limited power of the Court in his book, A Court Divided: The Rehnquist Court and the Future of Constitutional Law.

The Supreme Court receives such attention because it is a dramatic symbol. In this regard, it is much like the jury trial, which is quite a rarity these days. We love to speak about these legal institutions because they’re sexy, but they are really exceptions to the rule. If one were a Vegas odds-maker, in any given case, without knowing more, one would certainly put very good money on (1) no jury trial; and (2) no Supreme Court decision. Just try to get your case to the Supreme Court – your chances are as good as winning Powerball.

Much of the view of the Court’s extreme power stems from imagining what might happen if the Court were to decide thousands of cases each year and strike down hundreds of laws. But this is far from the case. State courts and federal district and circuit courts decide the vast body of cases and establish most of the precedent in this country. The Court decides fewer than 100 cases per year, a miniscule fraction of all cases in a given year. Of that small number, maybe five to ten decisions garner major attention.

In many cases, folks complain about what the Court doesn’t do. Thus, there’s a big debate about Kelo and the Court’s refusal to invalidate eminent domain practices of localities. Or Raich, where the Court held that Congress’s drug statutes trumped state law. But in both cases, Congress can step in and change things. The Court did nothing to limit Congress. Congress could change its laws to allow state laws for medical marijuana. And as Hillel Levin at PrawfsBlawg has pointed out, Congress could readily pass a law to rectify the Kelo situation. Thus, those decrying the Court might look to Congress for some action. Why hasn’t Congress resolved these problems? Where has Congress been? The Court shoulders the blame for not striking down the law in Kelo, but why does Congress get a free pass? Maybe Congress should be placed under the same intense and nasty microscope as the Court has been put under.

There are, of course, those few decisions where the Court has exercised its power in bold strokes, such as Roe v. Wade and Brown v. Board of Education. But these cases are far from the norm; they are relative rarities. Only a handful of big cases such as these have been decided over the past century. Contrast that to how much major legislation gets discussed and passed. In short, Congress and the President do far more than the Supreme Court ever can do, and they have powers that far outpace those of the Court, which only occasionally intervenes to limit their power.

Many of the gripes about the Court are in cases where it chooses not to strike down laws as unconstitutional. In other words, the Court gets criticized even when it does not exercise its power. Apparently, the Supreme Court just can’t win.

The Supreme Court’s power is quite a useful myth for politicians who love to attack the Court rather than blame themselves. They love to punt the ball to the Court and then blame the Court regardless of whatever it does. It’s so nice to have a scapegoat. If politicians didn’t have a Supreme Court, they’d surely have to invent one.


Without meaning to quibble, I should think it pretty clear to all but the Charles Blacks and Stephen Breyers of the world that Congress probably can't pass a statute enacting the petitioner's claim in Kelo; it's hard to imagine such a total federal takeover of statutory law being constitutional in front of this court, but after Raich I suppose you never know.

I meant to write, "a total federal takeover of statutory *Land Use* law"

Are you referring to Cornyn's Private Property Act? Either way, can you elaborate a bit? Thanks.

I'm curious, especially after City of Boerne, how the Congress can overturn a ruling on how the Takings Clause applies to state action.

The sentiment of the piece is overall accurate, though enough exceptions arise annually to warrant worrying about what they do.

My theory on why the Supreme Court gets all the media coverage and not Congress has to do with the "finality" of a Supreme Court decision. A case in the judicial systems always gets a "winner" whereas in the legislative arena, there are rarely winners in the same vein. Admittedly, very few decisions, even by the Supreme Court truly spell the end of any issue, but people like to think of winners and losers and the Court provides that framework.

Cornyn's Private Property Act (which forbids takings for purposes of private economic development) applies only to uses of eminent domain by the Federal Government and some small subset of uses by local and state governments where the taking itself is federally-subsidized.

If Cornyn had attempted to extend the act to cover all exercises of eminent domain by all governments, national and local, it seems unlikely to withstand Boerne without a great deal more in the way of Congressional findings of fact.

Imagine a federal statute providing that "private real property may not be transferred from one private party to another by use of eminent domain solely for purposes of 'economic development' or in hopes that the new ownership will result in higher tax revenues to the state." (Put aside for now defintional and line-drawing problems w/r/t, e.g., "economic development.")

Wouldn't such a statute plainly be permissible Commerce Clause legislation? Cf. Reno v. Condon; Guillen; Raich. More to the point, as a *prohibition* on state regulation of *transfers of property ,* wouldn't it simply be a permissible form of pre-emption? Cf. Golden State (Machinists pre-emption); Morales v. TWA (airline deregulation).
See generally pages 27-30 of

Failing to strike down as unconstitutional a law which IS unconstitutional, is just as much an abuse as striking down as unconstitutional a law which isn't. The issue isn't activist vs passive, it's correct rulings vs incorrect rulings. It always has been, and pretending otherwise doesn't impress anybody.

This post is a good response to claims that the Supreme Court is too powerful.

Of course, one also often hears the complaint that the judiciary is too powerful, and this post does not answer that criticism at all.

Could an Act of Congress define the meaning of "public use" or "just compensation" for purposes of the Fifth Amendment? If so, would such constitute reasonable regulation? If not, then doesn't judicial review determine?

Some thoughts at

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