Jonathan Mitchell

The power of judicial review is all too often regarded as something akin to an executive veto. When a court declares a statute unconstitutional or enjoins its enforcement, the disapproved law is described as having been “struck down” or rendered “void”—as if the judiciary holds a veto-like power to cancel or revoke a duly enacted statute. And the political branches carry on as though the court’s decision has erased the statute from the law books.

But the federal judiciary has no…

The power of judicial review is all too often regarded as something akin to an executive veto. When a court declares a statute unconstitutional or enjoins its enforcement, the disapproved law is described as having been “struck down” or rendered “void”—as if the judiciary holds a veto-like power to cancel or revoke a duly enacted statute. And the political branches carry on as though the court’s decision has erased the statute from the law books.But the federal judiciary has no authority to alter or annul a statute. The power of judicial review is more limited: It allows a court to decline to enforce a statute, and to enjoin the executive from enforcing that statute. But the judicially disapproved statute continues to exist as a law until it is repealed by the legislature that enacted it, even as it goes unenforced by the judiciary or the executive. And it is always possible that a future court might overrule the decision that declared the statute unconstitutional, thereby liberating the executive to resume enforcing the statute against anyone who has violated it. Judicial review is not a power to suspend or “strike down” legislation; it is a judicially imposed non-enforcement policy that lasts only as long as the courts adhere to the constitutional objections that persuaded them to thwart the statute’s enforcement.When judges or elected officials mistakenly assume that a court decision has canceled or revoked a duly enacted statute, they commit the “writ-of-erasure fallacy”—the fallacy that equates judicial review with a veto-like power to “strike down” legislation or delay its effective start date. This article identifies the origins of the fallacy, describes the ways in which the writ-of-erasure mindset has improperly curtailed the enforcement of statutes, and explores the implications that follow when judicial review is (correctly) understood as a temporary non-enforcement policy that leaves the disapproved statute in effect.

Apprendi v. New Jersey and subsequent Supreme Court cases have extended the Sixth Amendment right of jury trial to some, but not all, factual disputes at sentencing. These court decisions require juries to resolve any non-recidivist sentencing fact that increases the ceiling on a defendant's punishment, but do not extend this requirement to facts that decrease a defendant's punishment or that establish mandatory minimums without raising the maximum allowable sentence. This fails to provide a…

Apprendi v. New Jersey and subsequent Supreme Court cases have extended the Sixth Amendment right of jury trial to some, but not all, factual disputes at sentencing. These court decisions require juries to resolve any non-recidivist sentencing fact that increases the ceiling on a defendant's punishment, but do not extend this requirement to facts that decrease a defendant's punishment or that establish mandatory minimums without raising the maximum allowable sentence. This fails to provide a coherent or sensible constitutional rule for distributing factfinding powers between judge and jury. The reason is that the Supreme Court has inexplicably decided that all facts subject to the Sixth Amendment jury requirement must also be proved beyond a reasonable doubt, as if they were elements of substantive criminal offenses. This tie-in arrangement between the jury right and the reasonable-doubt rule is mistaken, and has caused serious problems with the Court's Apprendi jurisprudence.

In Courting Death, Professors Carol and Jordan Steiker present a thoughtful and trenchant critique of the Supreme Court’s capital-punishment jurisprudence. They present data and anecdotes showing that capital punishment today is no less “arbitrary” than it was before the Supreme Court started regulating capital punishment in 1972—leaving us with a regime that imposes costly, arcane, and technical rules on capital-punishment jurisdictions without any payoff in reducing arbitrary decisionmaking…

In Courting Death, Professors Carol and Jordan Steiker present a thoughtful and trenchant critique of the Supreme Court’s capital-punishment jurisprudence. They present data and anecdotes showing that capital punishment today is no less “arbitrary” than it was before the Supreme Court started regulating capital punishment in 1972—leaving us with a regime that imposes costly, arcane, and technical rules on capital-punishment jurisdictions without any payoff in reducing arbitrary decisionmaking. The Steikers also observe that many of these court-created doctrines suffer from vagueness and indeterminacy. And they even suggest that the Supreme Court’s efforts to restrict the death penalty have had the paradoxical effect of strengthening and entrenching the institution of capital punishment.Yet the pathologies with the Court’s capital-punishment doctrines go even beyond what the Steikers have identified. The Court’s “proportionality” doctrine, for example, rests on a non sequitur: That capital punishment is rarely applied to juveniles or people with mental disabilities does not indicate that a national consensus exists against any use of capital punishment in those situations. It is also wrong for the Court to infer “evolving standards of decency” from a state’s decision to establish minimum age or IQ thresholds for the death penalty. Governments often choose to legislate by rule for reasons that have nothing to do with standards of decency. Finally, the Court’s “proportionality” doctrine creates perverse incentives for prosecutors and elected officials, because it threatens to eliminate capital punishment across the board—or as applied to certain categories of offenders—unless the government produces enough executions to defeat a claim that a death sentence is no longer consistent with “evolving standards of decency.” The Steikers are right to criticize the Court’s efforts to regulate capital punishment, but the problems go beyond what they identify in their book.

Modern judicial review poses a unique threat to federalism, because it enables the Supreme Court to preempt state law and impose nationwide policies by a simple majority vote and without the assent of any other institution. And the current Supreme Court has shown little interest in adopting formalistic interpretive methodologies that would constrain its powers to override state law in the name of constitutional interpretation. Modern judicial interpretation of the Constitution is rooted…

Modern judicial review poses a unique threat to federalism, because it enables the Supreme Court to preempt state law and impose nationwide policies by a simple majority vote and without the assent of any other institution. And the current Supreme Court has shown little interest in adopting formalistic interpretive methodologies that would constrain its powers to override state law in the name of constitutional interpretation. Modern judicial interpretation of the Constitution is rooted primarily in court-created doctrines and precedents rather than constitutional language, and many of these doctrines and precedents could never have obtained the formal supermajoritarian assent needed to entrench a constitutional rule. These judicial interpretive practices are in tension with the Constitution’s efforts to protect federalism and state prerogatives by making it difficult for federal institutions to enact federal laws and impose nationwide policies on the states.Those who wish to preserve a regime of constitutional federalism should think hard about ways to counteract the Supreme Court’s unilateral nationwide policy-making. This is no easy task because the notion of judicial interpretive supremacy over the Constitution is well entrenched in our legal and political culture, and many of the Supreme Court’s decisions to nationalize policies at the expense of state decision-making enjoy substantial political support. This Essay discusses the challenges that confront efforts to protect state prerogatives against the unilateral policy-making of the federal judiciary, and proposes some strategies that advocates of federalism might deploy in their efforts to chip away at the judiciary’s incursions on state authority.

Congress’s national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it “specifically authorizes” them. And the Foreign Intelligence Surveillance Act of 1978 required its own amendment or repeal of its "exclusive means" provision before authorizing warrantless electronic surveillance. But efforts to…

Congress’s national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it “specifically authorizes” them. And the Foreign Intelligence Surveillance Act of 1978 required its own amendment or repeal of its "exclusive means" provision before authorizing warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Clinton Administration inferred congressional "authorization" for the 1999 Kosovo War from an appropriations statute that failed to specifically authorize the conflict. And the Bush Administration inferred congressional "authorization" for the NSA surveillance program from ambiguous language in the post- September 11th Authorization to Use Military Force. In both situations, executive-branch lawyers employed expansive theories of implied repeal and constitutional avoidance to evade the codified clear-statement requirements, and Congress and the courts acquiesced to the President's actions. Recent proposals to strengthen the clear-statement requirements in Congress's national security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional" authorization," and that can induce Congress to confront Presidents who act without specific congressional authorization. Simply enacting more narrow or explicit clear-statement requirements, or adding funding restrictions to Congress's framework legislation, fails to counter the aggressive interpretive doctrines that executives of both political parties have used to concoct congressional "authorization" from vague or ambiguous statutory language.

In 1874, the Supreme Court held in Murdock v City of Memphis that it lacked “jurisdiction” to review a state supreme court’s interpretation of state law, even in cases that present federal-law claims. The justices have since backed away from that seemingly ironclad rule; they now review and set aside state-court interpretations of state law that lack “fair and substantial” or “adequate” support in certain cases where the justices wish to enforce federal rights against the states. Yet the…

In 1874, the Supreme Court held in Murdock v City of Memphis that it lacked “jurisdiction” to review a state supreme court’s interpretation of state law, even in cases that present federal-law claims. The justices have since backed away from that seemingly ironclad rule; they now review and set aside state-court interpretations of state law that lack “fair and substantial” or “adequate” support in certain cases where the justices wish to enforce federal rights against the states. Yet the justices continue to labor under the Murdock-inspired notion that they are powerless even to consider reversing a state supreme court’s ruling solely on state-law grounds, as a means to avoid ruling on the federal-law claims presented in a case. This Article challenges the Court’s categorical unwillingness to consider such state-law reversals.

Justice Antonin Scalia was a transformational jurist for many reasons: his skills as a writer and rhetorician, his charisma, and his bold attacks on the conventional interpretive methodologies of his day. Many of his ideas and arguments have brought lasting change in the way courts behave, particularly in the field of statutory construction. Today there is far less judicial reliance on legislative history than there was when Justice Scalia joined the Supreme Court, and fewer facile invocations…

Justice Antonin Scalia was a transformational jurist for many reasons: his skills as a writer and rhetorician, his charisma, and his bold attacks on the conventional interpretive methodologies of his day. Many of his ideas and arguments have brought lasting change in the way courts behave, particularly in the field of statutory construction. Today there is far less judicial reliance on legislative history than there was when Justice Scalia joined the Supreme Court, and fewer facile invocations of “legislative intent.” But it also seems fair to say that Justice Scalia’s impact was less transformative in the field of constitutional law. While text and structure have become paramount in resolving disputed questions of statutory meaning, Obergefell v. Hodges shows that a majority of the Supreme Court still subscribes to the living-constitution philosophy that Justice Scalia so vigorously denounced. This essay considers why Justice Scalia—who so profoundly changed the way the Supreme Court interprets statutes—was less successful in changing the Court’s approach to constitutional interpretation. And it contends that Justice Scalia’s most powerful critique of modern constitutional interpretation was not his attack on the idea of a living Constitution, but his challenge to the assumption that the judiciary (of all institutions) should hold the prerogative to impose its preferred interpretations of an evolving Constitution on the rest of us.

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court’s stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional…

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court’s stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support constitutional stare decisis, but to do this it must narrow the circumstances in which stare decisis can be applied.

Modern Fourteenth Amendment doctrine is difficult to square with constitutional text. The text of the Equal Protection Clause, for example, makes no distinction between racial classifications and other discriminatory practices; it requires equal protection of the laws for every “person” within a state’s jurisdiction. Nor does the text require equal treatment or equal rights; it requires equality only in the “protection of the laws.” Yet the Supreme Court assumes that the Equal Protection Clause…

Modern Fourteenth Amendment doctrine is difficult to square with constitutional text. The text of the Equal Protection Clause, for example, makes no distinction between racial classifications and other discriminatory practices; it requires equal protection of the laws for every “person” within a state’s jurisdiction. Nor does the text require equal treatment or equal rights; it requires equality only in the “protection of the laws.” Yet the Supreme Court assumes that the Equal Protection Clause is implicated whenever a state treats people differently—without pausing to ask whether the state has withheld the equal “protection of the laws.” And the Court has created a textually unsupportable distinction between racial discrimination, which it subjects to “strict scrutiny,” and other discriminatory practices that receive rational-basis review.Yet textualism has been enjoying a resurgence in constitutional and statutory interpretation. This resurgence raises two questions for the Court’s equality doctrines. The first is whether those who embrace textualism must reject the Court’s equality jurisprudence as textually illegitimate. The second is whether those who embrace the Supreme Court’s landmark equality pronouncements must reject textualism as incompatible with those rulings. The answer to both questions is no. Almost all of the Supreme Court’s canonical racial-equality decisions have a firm textual foundation in congressional civil rights legislation—a fact that the Supreme Court has all but ignored by insisting on grounding its equality pronouncements exclusively in the Equal Protection Clause. And Congress enacted most of these civil rights statutes before the Supreme Court invoked the Equal Protection Clause to declare a discriminatory practice unconstitutional. So these civil rights statutes can and should be used to supply textual support for the Court’s decisions and doctrines, especially when the Equal Protection Clause is textually ill suited for the task.