Brandeis and the progressive constitution: Erie, the judicial power, and the politics of the federal courts in twentieth-century America

This chapter examines Justice Antonin Scalia’s views on Article III of the U.S. Constitution and the nature of the federal judicial power that it established. One of Scalia’s principal goals was to limit severely the power of the federal courts and to undo many of the decisions of the Warren Court, including their ability to create implied private causes of action, and the chapter argues that in pursuing that goal Scalia departed from originalist views and that the arguments he advanced were themselves self-contradictory. The chapter shows, moreover, that originalist doctrines and historical practices actually contradicted his claims about limits on the federal judicial power. Further, the chapter argues that his views were based not on originalist ideas but on the twentieth-century positivism associated with Erie Railroad v. Tompkins, and that in Sosa v. Alvarez-Machain, he explicitly acknowledged that his positivist ideas were not the ideas of the Founders. The chapter concludes that in this area, Scalia simply abandoned originalism and did so, once again, to achieve his own ideological and political goals

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The Judicial Response to the Administrative State

Cases Without Controversies ◽

10.1093/oso/9780197571408.003.0006 ◽

2021 ◽

pp. 87-98

Author(s):

James E. Pfander

Keyword(s):

Nineteenth Century ◽

Twentieth Century ◽

Supreme Court ◽

Federal Courts ◽

Judicial Power ◽

Administrative State ◽

The Supreme Court ◽

The Way ◽

Judicial Role

This chapter describes the way a requirement of contestation was introduced into definitions of federal judicial power in the latter half of the nineteenth century. The case-or-controversy requirement arose as a tool with which federal courts could refrain from lending support to the investigatory and regulatory initiatives of the growing administrative state. Justice Stephen Field played a central role in the introduction of the contestation construct, and it took hold at the Supreme Court in the twentieth century, as progressive Justices came to embrace contestation as an essential limit on the judicial role in constitutional litigation.

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Uncontested Adjudication and the Modern Case-or-Controversy Rule

Cases Without Controversies ◽

10.1093/oso/9780197571408.003.0009 ◽

2021 ◽

pp. 143-154

Author(s):

James E. Pfander

Keyword(s):

Nineteenth Century ◽

Twentieth Century ◽

Federal Court ◽

Federal Courts ◽

Judicial Power ◽

History Of

This chapter explains how the nineteenth-century history of uncontested litigation undercuts the modern case-or-controversy rule as developed and applied in the twentieth century. That the antebellum federal courts were empowered to hear petitions for naturalized citizenship and other uncontested claims as cases under Article III undermines three key elements of the modern case-or-controversy rule: its suggestion that all plaintiffs invoking the judicial power must establish standing by identifying an injury in fact; its requirement that only claims that name an adverse party can be brought in federal court; and its linkage of cases and controversies, two distinct ideas, in an all-purpose case-or-controversy requirement.

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