A Neo-Federalist View of the Supreme Court’s Docket: Analyzing Case Selection and Ideological Alignment

Abstract

For more than seventy years, scholars have engaged in an intense debate over a core constitutional question: what restraints does the Constitution place on Congress’s power to limit the jurisdiction of the federal courts? Far less attention has been given to an equally important real-life question: how does the operation of the jurisdiction, as defined by Congress and the Supreme Court, comport with the assigned role of the federal courts in the system of government established by the Constitution? This Article takes a novel approach: it draws on constitutional theory to devise a set of tools for addressing the operational question empirically.

The theory derives initially from Professor Akhil Reed Amar’s landmark article focused on the constitutional debate. In that article, Amar developed and defended a “neo-Federalist view” of Article III. This view emphasizes “the Federalists’ reliance on federal judges” to enforce federal law and “the critical role of judicial review in Federalist theory.”

The present Article builds on Amar’s insights as well as my own empirical studies to offer a neo-Federalist view of the Supreme Court’s docket. It also takes account of two key developments that have occurred since the Founding. A century ago, Congress enacted the “Judges’ Bill”; in its aftermath, as Robert Post has written, the Supreme Court took on a new role as “the proactive manager of the system of federal law.” More recently, the Court has come to be viewed from a perspective that is centered on ideology. There is a narrative, and it is framed as a conflict between “liberal” and “conservative” positions.

The purpose of the Article is to provide a set of analytical tools for examining the Court’s work from both neo-Federalist and post-Founding perspectives. To that end, it outlines an objective, transparent case classification system for empirical research focused on both input (the selection of cases for plenary consideration) and output (the outcomes of the resulting decisions). Such research can show how the Court has carried out its managerial function and thus enable us to reach sound conclusions about current or future proposals for reform—for example, adding new categories of cases to the Court’s mandatory jurisdiction. And the system is uniquely well designed to map the ideological divide in the federal courts today. That is because, in broad terms, what defines that divide is that both liberals and conservatives embrace a strong commitment to judicial review to protect individuals against government overreaching, but they disagree profoundly over where and how that power should be deployed.

An important contribution of the Article is the distinction it draws between issue polarity—for example, did the court rule in favor of the constitutional claim or against it?—and ideological direction. Issue polarity—because it is grounded in the structure of federal law—is a constant over time; ideological direction is tied to a particular era. Only by recognizing and applying this distinction, the Article argues, can one fully understand the shifts in ideological alignment over time—or the contours of the ideological divide today.