Federal and State Judiciary Power Redistributions: Tailored to Short-change Ordinary Citizens

In this short article, I endeavor to explain how, over the last two hundred years, both state and federal judiciaries have grown in stature, prestige and power and, because this power could not be borrowed from the other, it has been taken from the other branches of government and, at a more personal level, directly from the people at the expense of individual liberties. As with many of my articles, this article is intended to be construed in harmony with my other writings on this site (http://KnowYourCOurts.com).

Federalism, advanced significantly by the Rehnquist Court, describes the division of power between federal and state governments and is purported to advance liberty.  The late Chief Justice Rehnquist wrote of it, “[t]his constitutionally mandated division of authority ‘was adopted by the Framers to ensure protection of our fundamental liberties.’” ^[1]Similarly, Justice Scalia wrote, “[t]his separation of the two spheres is one of the Constitution’s protections of liberty,” ^[2] and retired Justice O’Connor wrote, “Just as the separation and independence of the coordinate branches of the Federal Government server to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” ^[3]

However, as I will explain below, the Court didn’t always hold these views. In fact, the early Supreme Court concluded that the state judges could not be trusted to adequately protect federal rights because, "In many States, the judges are dependent for office and for salary on the will of the legislature." ^[4] In language similar to that often heard in modern debates about parity between federal and state courts, Chief Justice Marshall stated: "When we observe the importance of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist." ^[5]

In later years, the Supreme Court reminded us that "[The] legislative history makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication off those rights; and it believed that these failings extended to the state courts . . . The very purpose of [42 U.S.C. §] 1983 was to interpose the federal court's between the States and the people as guardians of the people's federal rights." ^[6]  Many, if not most, commentators agreed.^[7]

Additionally, most commentators agree that diversity jurisdiction —the right to sue defendants of a different state in federal court, rather than the defendants’ state court— was created, in part, out of concern that state courts might unduly favor their own state residents over out-of-state parties. 

Perhaps one reason the fledgling U.S. Supreme Court initially sought to consolidate power, including “judicial review” (the power to declare what the Constitution is because of the misguided perception of the “natural feebleness of the judiciary,” as Alexander Hamilton described it The Federalist, No 78.

In No. 78, Hamilton defended the doctrine of “judicial review” on the basis of the judiciary’s inherent incapacity, in comparison with the popularly elected branches, to injure the political rights of the Constitution.  Specifically, he argued, among other things, that the judiciary wields influence of neither the sword nor purse.

Hamilton’s arguments, however, should be understood in historical context: He was responding to a series of essays written by an Anti-Federalist, Robert Yates, a New York judge, using the pseudonym of Brutus.  Yates was arguing that the power of the federal judiciary was a potential instrument for consolidating national powers at the expense of the states. ^[8]   In his response, Hamilton was not so much advocating judicial review as attempting to turn Yates’s arguments against him when he suggested that the Court’s power was intended to hold Congress in check and thereby safeguard the states from a Congress seeking consolidation.

In fact, Hamilton’s argument in The Federalist, No. 78 was completely contrary to the argument he made on the same subject in The Federalist, No. 33:  In No. 78, refuting Yates, Hamilton relied exclusively on the Court, whereas in No. 33 (written before Brutus), he never even mentioned the Court. Accordingly, constitutional historians, such as Leonard W. Levy, have characterized Hamilton’s remarks in No. 78 “as evidence of shrewd political tactics, not of the framers’ intention to vest judicial review in the Supreme Court over acts of Congress.” ^[9]

Fast forward two-hundred years and few would contend that the federal judiciary is feeble or inherently incapable.

It is only the judicial branch, and particularly the Supreme Court, that has significantly grown in stature since its creation some 200 years ago. For the vast majority of people, the Justices, their deliberations, their decision-making processes, all remain shrouded in secrecy. There is almost an ecclesiastical aura and mystery that surrounds that temple where final and unreviewable power is exercised.^[10]

Instead, many have formed the opinion that the self-governing federal judiciary has grown too powerful and unaccountable. Consider, for example, this statement, excerpted from a July 10, 2006 memorandum from the Colorado Bar Association to its members concerning then-pending Amendment 40.

“Unlike federal judges, state court judges do not have lifetime tenure and are subject to substantial accountability"

Similarly, The Westword characterized one wayward federal judge as one, “who runs his courtroom as only a man with a lifetime appointment can.” (Click here). Some have gone so far as to conclude that Brutus’s prognostications about the unchecked power of the federal judiciary have been accurately fulfilled.^[11]

During the last twenty years of federalism, however, the foregoing illusion of the feebleness of the federal judiciary has been supplanted by another: that the Supreme Court’s federalism decisions are a means to the end of returning power to the states, thereby increasing liberty. Rather, while the federal judiciary has not relinquished its tremendous political power of judicial review, it has moved to shed involvement and responsibility in the protection and vindication of individual liberties, leaving these annoying tasks to the state courts —the same courts that were traditionally regarded as inadequate to protect these rights.  Some commentators have characterized the Supreme Court’s return of this particular power concerning civil rights as “rights-regressive —that is, they limit, rather than enhance, individual liberties . . . By claiming that federalism enhances freedom, the Court and its defenders have masked a very powerful criticism of its recent decisions: they actually undermine liberty.” ^[12] 

The end result of two hundred years of shuffling and redistribution of various aspects of judicial powers is that: both federal and state judiciaries have predictably grown in power and reach; both federal and state judiciaries have enjoyed an expansive lack of accountability both through the doctrine of  “absolute immunity” and through ineffective administrative discipline; the Supreme Court has substantially expanded state sovereign immunity; meaningful civil redress has become the nearly exclusive province of large corporate interests;^[13] and individual liberties are both truncated and nearly impossible to vindicate.^[14]

last updated: 03/27/2008