Comment   |   Volume 161, Issue 2

Preserving Judicial Supremacy Come Heller High Water

By
Benjamin S. Softness
161 U. Pa. L. Rev. 623 (2013)

January 2013










Minimalism does not only facilitate doctrinal innovation in a given area of the law. On my account, the Court sometimes issues minimalist rulings in order to preserve its ability to develop doctrine at all. The Court’s ability to “say what the law is” depends entirely on its institutional credibility—credibility that is risked when the Court rules on controversial topics. Thus, in certain “hot-button” cases, when the Court is required to make a controversial legal determination, it does so on narrow grounds in order to preserve its institutional power. I call this approach “power-preserving minimalism.” Unpopular decisions can harm the Court’s authority when they result in resistance—that is, when the Court’s mandate goes unfollowed. Minimalist decisions avoid this pitfall: they state a legal principle in a way that requires fairly little (or no) action by the population at large. 

This Comment argues that Heller and McDonald were decided in just such a way. They were the subject of intense public debate and were quite significant jurisprudentially, but their innovative legal holdings were tempered by judicial tolerance of most existing gun laws. Thus, whether they agreed or not, it was dificult for citizens or political actors (federal, state,  or  local)  to  resist  or  defy  the  decisions  in  any  way. By  demanding fairly little, the decisions preserved the Supreme Court’s power. 

In displaying power-preservation tactics, Heller and McDonald are two in a line of cases that includes Marbury v. Madison, Brown v. Board of Education, and,  most  recently,  National Federation of Independent Business v. Sebelius, the Court’s decision resolving the constitutionality of the Affordable Care Act. In all of these cases, the Court set new legal precedent but demanded very little in practical effect. And in all of these cases, a chief factor motivating the Court was the preservation of its own institutional power.

Preserving Judicial Supremacy Come <i>Heller</i> High Water - PennLawReview.com

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