Tuesday, November 10, 2020
This morning's oral arguments in California v. Texas will put on display the Justices' conceptions of their individual judicial role, the Court's role, and the role of the federal courts more generally. One feature to look for is the way that the Justices think about how "judicial review" operates.
The quasi-legislative conception of judicial review that now seems well ensconced was something of a late arrival, emerging in the late nineteenth century. An earlier understanding focused more on refusing to give effect judicially to unconstitutional law. On this traditional understanding, the judiciary did not do anything to an unconstitutional law; it performed no operation, no striking down.
The whole framing of severability, however, presupposes the more modern understanding of judicial power vis-a-vis unconstitutional laws. Within this quasi-legislative conception, an excision-based understanding of judicial review asks whether the Court can surgically remove an offending aspect of the law without ruining the rest of the law.
While severability is of deep interest, my ears will perk up more if there is discussion of justiciability. There is an unfortunate tendency in recent decades to flatten out Article III justiciability to focus on standing to the exclusion of other ways of thinking about what makes a "case." The amicus brief that I teamed up to file with Michael McConnell, Sam Bray, and Raffi Melkonian provides another way of getting at the absence of a true case here. Its basis seems like a very narrow doctrine about a case interpreting the Declaratory Judgment Act. But that is only on the surface. Foundationally, the Skelly Oil doctrine operates in a situation like this to avoid the provision of an advisory opinion. Here's to hoping this line of analysis receives some attention.