Jonathan Shapiro (Columbia Law School; University of Oxford – University of Oxford, Corpus Christi College, Students; Columbia College (NY)) has posted Two Mandates, Both Alike in Dignity: Recentering the Supreme Court as a Defender of the People's Federal Rights on SSRN. Here is the abstract:
In the face of multiple trans-substantive lines of criticism, today's Supreme Court is in trouble. While there are doubtless many causes that lead to the problems diagnosed by the Court's critics, this Paper identifies one underdiscussed and poorly understood cause—a shift in what is taken to be the Court's essential role in the constitutional plan. From first principles, the Court ought to have a dual mandate: first, to resolve important questions of federal law, and, second, to serve as the last line of defense for the people's federal rights. While this dual mandate was well understood from the Founding—not just in the text and structure of the Constitution but at the Constitutional Convention and during the debates over Ratification as well—and was baked into legislative regulation of the Court's appellate docket from the Judiciary Act of 1789 through major reforms, including the Evarts Act and the Judges' Bill, all the way up to the codification of Title 28 of the U.S. Code in 1948, it became garbled over the course of the 1950s and 1960s. By the 1970s and 1980s, both Congress and the Court drew the wrong lesson from the Evarts Act and the Judges Bill: Rather than recognize that the two halves of the mandate were both critical to the Court's and the Constitution's continued political legitimacy, defense of the people's rights was subordinated to supervision of the development of federal law. This Paper argues that this rupture in the Court's dual mandate was a mistake and ought to be reversed.
Recommended.