Aziz Huq, Review of James E. Pfander's "One Supreme Court: Superiority, Inferiority and the Judicial Power of the United States" (Oxford, 2009)
Constitutional histories of the United States have tended to focus on two of the three branches established by the Constitution at the expense of the third. Congress and the Presidency have received ample historical attention while the federal courts have secured less of the spotlight. There are sound reasons for this. Article III of the Constitution creates only “one supreme Court,” and leaves it to Congress to fashion “such inferior Courts” as it desires. The high court exercises separate “original jurisdiction”—power to hear cases lodged in the first instance before the justices—and also “appellate jurisdiction” over other courts. But the latter is subject to “such Exceptions, and under such Regulations” as the political branches see fit.
As Northwestern Law School professor James Pfander rightly underscores, this is not the outer reach of political control over adjudication in the 1787 federal system: a separate, under-studied clause of Article I, Section 8—the provision enumerating the new Congress’s specific authorities—also gives allows legislative creation of “Tribunals inferior to the supreme Court.” At a minimum, this includes territorial courts such as those created by the Northwest Ordinance of 1787, finalized by the Continental Congress while the Philadelphia Convention was debating,
What does this network of congressional options—which on its face gives ample scope for political control of the judiciary via expansion or contraction in the number and jurisdiction of federal courts—suggest about the role of courts in American political development? What does it entail for rule-of-law values and the distribution of constitutional rights? The latter question, as Pfander notes, is sharply presented not merely by failed efforts to choke federal jurisdiction over abortion, establishment clause, and gay marriage issues, but also and more acutely by the successful efforts in 2005 and 2006 to extinguish, or at a minimum vastly constrain, the federal courts’ supervisory powers over the Guantánamo Bay detentions.
Federal jurisdiction, indeed, has seemingly played a pivotal role in transitions between what Stephen Skowronek has called “regimes.” At the threshold of the current constitutional era, my colleague Alison LaCroix has recently explained how the federal courts were understood as the site for elaborating the new federal-state relationship. This innovate role came on the heels of the failure at Philadelphia of James Madison’s proposed congressional “negative” over state laws. Under John Adams, federal courts, expanded and stacked with fellow Federalist travelers by the 1801 Judiciary Act, were the Federalists’ last redoubt against a Jeffersonian tide. Prior to the Civil War, as Mark Graber and others have shown, many on both sides of the slavery question looked to a Supreme Court led by Chief Justice Roger Taney for wise settlement of the divisive national issue. And a central axis of confrontation in the New Deal was the appropriate scope of presidential control over the size and orientation of the Supreme Court.
Yet at none of these junctures did a view endorsed and defended by the federal judiciary prevail against some contrary opinion held by plausibly powerful national majorities (although LaCroix accurately points out that the 1801 Act anticipated a robust federal vision of the judiciary’s role that was to be resuscitated after the Civil War). So what function do the federal courts play? And what stops Congress from leveraging its textual authority over the courts to transient political ends at odds with other substantive goals endorsed elsewhere in the constitutional text?
James Pfander’s articles and the book that summarizes and reframes those articles for an incrementally more general audience begin to answer that question. That Pfander cannot provide a full and compelling account of the role of the federal courts says nothing about his own skill as a legal and historical scholar, but speaks volumes about the limitations of the method of constitutional exegesis that dominates the academy. Pfander may accurately and plausibly answer questions framed by the canonical doctrinal legal scholarship—as I believe he does—but his answers cast frustratingly dim light on larger questions of the federal judiciary’s role in the governance system set in motion in 1787. Nor does it explain fully when and how the courts’ presence makes a difference to political outcomes—even in regard to core constitutional entitlements.
To be fair and candid, these are not the terms of Pfander’s brief. And criticisms of a book for failing to answer a query the book does not pose, or claim to resolve, are typically off the mark. But this book, like the larger body of constitutional law, proceeds in some sense as if the answers to canonical questions of constitutional law are consequential in a meaningful sense. It behooves the literature, if not individual scholars, to explain precisely “how” and “why.”
The notional target of Pfander’s analysis is the term “supreme” in Article III and the question of what supremacy, as a legal concept, entails. In this task, his book succeeds admirably. Pfander argues that the Constitution installs one court that is “supreme” in the sense that it exercises supervisory authority over all Article III “inferior Courts” and Article I “tribunals” that parse and apply federal law. Among the latter were state courts, which heard federal claims from the beginning of the Republic (although some decades afterward they resisted the notion of federal court supervision). Not among the latter are presidentially created bodies, such as the November 2001 military tribunals, created by President Bush with arguably insufficient congressional input and invalidated by the Supreme Court in 2006.
The Framers, explains Pfander, understood supremacy to be operationalized via a mechanism borrowed from English law: the “prerogative writs” of mandamus, habeas corpus, and scire facias (among others). Upon a petition for one of these writs, a high court could act by directing a subordinate body to follow federal law. In Pfander’s view, this supervisory power is in excess of the high court’s original and appellate jurisdiction. Recent Supreme Court cases involving jurisdictional constraints on review of the Guantánamo detentions and state court criminal convictions, Pfander points out, have relied on the basic concept, even if they have not been pellucid about the supremacy theory and its operation via prerogative writs as he expounds.
The net result in the book is an exposition of what one might call an immanent constitutional logic. That logic, somewhat mysteriously, persists through history despite being perceived only through heavy-lidded eyes. Methodologically, this is the familiar stuff of legal scholarship, but done exceedingly well. Unlike some legal scholars, Pfander does not pluck selectively from Federalist and anti-Federalist writings to fashion his case. Looking instead both to James Wilson’s lectures and to the publications of the antifederalist “Federal Farmer,” Pfander traces convincingly a shared notion of supremacy.
Yet the traditional methodology is not entirely satisfying. For example, one problem for Pfander’s account is that the concept of a supervisory power in fact plays remarkably little explicit role in contemporary judicial opinions, even those defending judicial authority against congressional incursion, and even when they can be explained in those terms. Moreover, when legislators or Congress propose to limit the courts’ ambit, they do think in terms of supervisory authority. If they did, I suspect, we would see them set out to quash that too regardless of what the best reading of the Constitution might be.
What animates the Court and constrains the political branches, in my view, is not a precise and technical understanding of the constitutional obligation of supremacy but an inchoate and perhaps contingent cultural idea of the role of courts in defending core rights. This role perhaps owes less to the metes or bounds of the original constitutional text than it does to decisions such as Brown v. Board of Education, which burnish the courts as moral exemplars and distillates of transcendent wisdom. We are in the grip of dead Justices, that is, and not dead Framers as Pfander suggests. And the written Constitution is not what Walter Bagehot would have called the “efficient” constitution. No account of the written Constitution’s internal logic, even if it is as well written and persuasive as Pfander’s, can thus fully answer the institutional and normative puzzles posed recurrently though American history.
Whatever one’s view of the Constitution’s operation, though, Pfander’s book provides an illuminating and well-written view on some core questions that have troubled scholars through the ages.
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