Asymmetric World Jurisprudence

• Publication year: 2009
• Citation: Vol. 32 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 32, No. 3SPRING 2009

Asymmetric World Jurisprudence

Caprice L. Roberts(fn*)

I. Introduction

An asymmetric world-marked by gross imbalances of power and unconventional tactics-requires that we regularly reexamine federal judicial power and its limits. Now, more than ever, the jurisdiction and justiciability doctrines cannot remain static. Since 9/11, the judiciary's coequal branches of government have flexed significant political muscle in waging the global "war on terror." These congressional and executive actions have direct and indirect consequences on the rule of law and on constitutional rights. Such consequences place special importance on the Supreme Court's essential function of safeguarding constitutional protections.

This Article accepts the invitation to think boldly-to get radical about our judicial vision. We began a dialogue on Alternative Judicial Visions as part of a panel held at the Southeastern Association of Law Schools conference in July 2008. My remarks center on the need for the federal judiciary to exercise a strong voice when another branch has upset the balance of powers. President George W. Bush's broad interpretation of executive authority in the execution of the global war on terror, often supported by Congress, required that the Court act more aggressively to keep the other branches in check. One consequence of 9/11 is the new reality of ever-present asymmetric warfare. A more dynamic judicial theory is necessary, and a rethinking of restraint doctrines is imperative. This Article focuses on the application of one justiciability doctrine-the political question doctrine-because of its unique relevance in times of great separation-of-powers tension.

"Asymmetric world" has more than one meaning. The global reality demonstrates the gross imbalances of power and the increased use of unconventional tactics. Those who exercise power include nontradi-tional actors, such as alleged terrorists, who operate beyond nation-state borders. On a domestic level, another asymmetry exists-the external pressures of terrorism caused a heightened response by the political branches in the United States. Thus, the federal judiciary confronts a domestic balance of powers that is asymmetrical. The judicial branch must be dynamic: it must be aware of its surroundings and adapt its doctrines. In asymmetrical times, the political branches need expanded powers, but this reality carries the threat of overreaching. The Court will need to demonstrate that it will check the political branches as part of its separation-of-powers duty. Accordingly, the Court will need to consider more carefully when to assume jurisdiction, when to exercise judicial review, and when to speak boldly.

The world's asymmetric reality, including threats to the rule of law and constitutional protections, dictates reviewing doctrines of judicial restraint. The reexamination should cover popular approaches as well as judicially created restraints, including judicial minimalism, hostility to litigation, and the prudential justiciability doctrines. These doctrines of restraint seek to serve laudable purposes, including respecting other branches' spheres of legitimate control and preserving scarce judicial resources. Such doctrines foster an environment in which the Supreme Court hears fewer cases and often limits the substantive reach of those cases.(fn1) This Article assumes that the Court will maintain or continue to shrink its docket.

With mandatory appellate jurisdiction almost gone, the Supreme Court exercises enormous discretion when granting certiorari; the Court grants only 3-4% of petitions each year. In the current era, it is safe to assume that the Court will likely decide only seventy cases per year.(fn2) In the 2007 term from October 2 to June 28, for example., the Court decided only sixty-eight cases-"the fewest since the 65 cases the court decided in 1953."(fn3) These rates reflect a tenfold decrease since 1924; in the current decade, "the Supreme Court reviews only one in one hundred appellate decisions."(fn4) Given the declining rate of discretionary review, vigilant reexamination of the purposes and means of jurisdictional limits is necessary to ensure safeguarding of constitutional protections. Particular scrutiny should flow when the tensions touch on the heart of the American constitutional democracy-the separation of powers.

The new reality suggests that the other branches of American government will exercise their authority in bold and unanticipated ways at home and abroad. Many such actions will involve interpretations of constitutional authority and may impinge on individual constitutional rights. The unforeseen method of attack on 9/11 caused inflated international and domestic responses to re-secure our national security. The terrorist attacks exposed our vulnerabilities and served as a catalyst for much-needed security repair. In hindsight, some actions will be viewed as reacting too broadly at the expense of constitutional freedoms. Tensions between the individual vis-a-vis the government will continue to be under stress.

Other tensions are also on the rise. The current economic crisis has triggered a greatly expanded federal role. The federal government is increasingly involved in managing the economy. This expanded federal involvement will add stress on the freedom to contract, federalism, preemption doctrine, and separation of powers. For example, iterations of the Wall Street bailout legislation included a jurisdiction-stripping provision.(fn5) Similar legislation may unfold with respect to the auto industry and beyond. As the federal political branches become more entrenched, the parameters of the federal judiciary's role will require attention.

In addition, the militarization of, .and Presidential involvement in, terrorism cases brings acute tension on the separation of powers. Accordingly, the new asymmetric reality will call for greater federal court involvement. Further, the asymmetric reality has no end in sight. The federal judiciary will need to help by checking the other branches to facilitate a political course of correction. The political branches, legislative and executive, will continue to choose and manage the course of national security, but the Court must answer the call when constitutional bounds are violated. This heightened context will no doubt require the Court to enter the fray to protect constitutional rights as they are tested in new and unforeseen ways. The federal judiciary must be careful not to overstep its power. Yet, the consequences of a failure to act, a decision lacking clarity, or minimalist, piecemeal responses may be dire.

To what extent, if any, should the Court adjust to this reality? Chief Justice John Roberts's confirmation hearings included advocacy for unanimity, collegiality, and a judge-as-umpire model.(fn6) Since confirmation, Chief Justice Roberts has influenced the Court's reluctance to hear certain cases and its overt restraint as a driving influence in decision making. Related consequences include a shrinking docket and a shift in the nature of cases from constitutional rights to business matters. Forces of restraint, such as judicial minimalism and avoidance doctrines, stem from a respectable concern regarding the temptation to abuse power. Such doctrines of restraint may embody wise impulses, but these doctrines should not constitute governing jurisprudence for all cases.

The Supreme Court should reconsider its prudential justiciability doctrines and their underlying assumptions. For example, consider the conventional wisdom regarding the justiciability doctrines: "[T]he justiciability doctrines conserve judicial resources, allowing the federal courts to focus their attention on the matters most deserving of review."(fn7) What if the federal courts are not using justiciability doctrines to focus on matters most deserving of review but instead are using justiciability doctrines as shields to dismiss thorny matters and avoid confrontation? The Supreme Court, in particular, may be shifting its interests towards business cases rather than individual constitutional rights. To the extent the Court is tempted to use the justiciability doctrines to defer to the political branches, is such avoidance riskier in the modern asymmetric climate? The increased risk stems from the temptation of the political branches to overstep their authority and from the severe consequences of such overreaches if left unchecked. Alternatively, the Court may hear the case but rule in a minimalist fashion and, rather than address the primary merits, signal to another branch that it should act. This Article will address the potential dangers of judicial minimalism as a governing jurisprudence in these times.

As a global theory, this Article offers a judicial dynamism model. It then articulates the relevance of the political question doctrine and the need to view the doctrine as prudential rather than constitutional. Once viewed as prudential, the political question doctrine should remain flexible; the contours of any given separation-of-powers alignment should tilt the jurisdictional scales. For example, I present an alignment hypothesis: if the President and Congress have aligned to support a federal action that implicates constitutional rights, the jurisdictional scales should...