The Supreme Court as an Enforcement Agency

I. Introduction Criticism of the Supreme Court as excessively activist abounds in the law reviews,1 in the political science literature,2 and in the popular press.3 The criticism is neither new nor particularly shocking given that judges, like the rest of us, have political preferences. However, the Court has opened itself to a more intense fusillade by relying on a variety of institutional justifications in interpreting the constitutional text. The Court's invocation of institutional and political factors in construing the Constitution jeopardizes its legitimacy as an independent third branch of government. As a result, the Court seemingly has discarded a mantle of neutrality to don instead an overtly political cloak. The Court's explicit discussion and consideration of factors other than the merits of a case, however, should not be alarming. The Court not only sits at the apex of the judiciary, but also exists within our system of separated powers and federalism. In addition to analyzing legal issues, the Court must and would be incredibly naive not to - consider the impact of constitutional rulings on lower courts, coordinate branches, state governments, and society as a whole. The Court may occupy a special role in construing the constitutional text,4 but political and administrative realities temper the Court's interpretive function. In essence, the Supreme Court shares many attributes of any enforcement agency.5 The Court must assess how best, given its limited resources, to control, or at least to influence, constitutional interpretation by others.6 The enforcement tools of the Supreme Court, however, are limited. Unlike most agencies, the Court cannot engage in substantive rulemaking, it has no enforcement agents, and it cannot institute suit.7 Instead, the Court must rely almost exclusively upon its power to decide - or not to decide - cases and controversies. When confronted with a novel or a difficult constitutional claim, the Court, like other enforcement agencies, may decline to act. The Court can deny certiorari, and it also may find a case nonjusticiable even after granting certiorari.8 Thus, even more than most enforcement agencies, the Supreme Court has great flexibility in choosing its docket. Through exercise of such "passive virtues," the Court can avoid tackling constitutional issues that it is not prepared to address and can allow other actors more direct say in formulating constitutional doctrine.9 The Court plays a more direct role by deciding cases and controversies. When resolving issues, the Court, again like any enforcement agency, must fashion rules in a way that will invite obedience by others such as lower courts, Congress, and state legislatures. As has been often noted, bright-line rules serve the Court well by providing a framework for future conduct.10 In addition, the Court must craft constitutional rules that lower courts can administer-not always a simple task.11 Moreover, the Court at times will use its certiorari power to superintend the workings of lower federal and state courts. The Court's recent contretemps with the Ninth Circuit illustrate that the Court must manage lower courts as well as exercise its role as the arbiter of constitutional meaning.12 The Court can also wield its authority effectively by overenforcing or underenforcing constitutional rights. The Court's enforcement strategy can lead the Court to consider more than just constitutional interpretation and precedent when it is addressing the merits of a constitutional claim. Depending upon the presence of institutional or federalism factors, the Court may either deny a claim and leave it to other institutional actors to provide more constitutional protection, or may grant the claim if it fears that, absent such a ruling, other actors would frustrate recognition of an underlying constitutional norm. Two relatively familiar examples may prove helpful. First, in Garcia v. San Antonio Metropolitan Transit Authority,13 the Court declined to enforce the Tenth Amendment principally for institutional reasons. …