Aaron Spikol (Stanford University, Department of Political Science, Students) has posted Liquidating Judicial Power on SSRN. Here is the abstract:
The Supreme Court assumes that questions about federal judicial authority can be answered based on the original meaning of the words “judicial Power” in Article III of the Constitution. That assumption—which appears in cases ranging from CASA to Loper Bright—is mistaken. The meaning of “judicial power” was far from certain when the Constitution was ratified. Even our most basic conception of judicial power—that Congress makes law and the judiciary interprets and applies it—was not agreed upon. Many understood the Constitution to allow Congress and the President to apply the law by reversing judgments, to interpret the law contrary to the judiciary, and to allow federal judges to make law. That uncertainty about judicial power led to debates in the 1790s and 1800s over how much authority federal judges should have. Some of those debates were between the Federalist and Republican parties, while others were between the Supreme Court and the elected branches. It was through early debates and practices that the core meaning of judicial power liquidated, giving us the contemporary consensus that legislatures make the law, while courts interpret and apply it. Nonetheless, nuanced disagreements continue to arise over the precise contours of judicial authority. We cannot rely on the “original meaning” of judicial power to resolve those nuanced disagreements. Rather, they must be resolved in the same way that the founders resolved them—through practice and debate.
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