• 02 November 2009

The Structural Case for Vertical Maximalism

& Tara Leigh Grove

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Many prominent jurists and scholars—including those with outlooks as diverse as Chief Justice John Roberts and Cass Sunstein—have recently urged the Supreme Court to adopt a “minimalist” approach to opinion writing: issuing narrow, fact-bound opinions that do not resolve much beyond the case before the Court.  I argue that minimalism, as employed by the current Supreme Court, is in tension with the structure of the Constitution.

The Constitution establishes a hierarchical judicial system and thereby suggests that the Court has a “supreme” role in defining the content of federal law for the judiciary.  But the Court today is limited in its capacity to perform that function because it can review only a fraction of the lower federal and state court cases involving federal law.  I argue that the Court should therefore make the most of the cases it does hear by issuing broad decisions that govern a wide range of cases in the lower courts.  I call this approach “vertical maximalism.”  I use the term vertical maximalism to make clear that such broad decisions need not interfere with democratic processes; they could direct all lower courts to defer to the political branches (such as when the Supreme Court declares that economic regulations are subject only to rational basis scrutiny).  But the decisions should be broad and should provide guidance to lower courts.  When the Supreme Court instead issues a more narrow (“minimalist”) opinion, it leaves a great deal to be decided by lower courts in future cases, and thereby delegates its “supreme” law declaration function to its judicial inferiors.

Before I go into more depth about this structural argument, I should explain what I mean by “minimalism” and “vertical maximalism.”  Baze v. Rees1—the recent lethal injection case—nicely illustrates Chief Justice Roberts’s preference for minimalism.  Baze involved a challenge to Kentucky’s lethal injection protocol.  The Chief Justice’s plurality opinion noted that thirty-six states currently use lethal injection as a method of execution, and that thirty of those states use the same basic three-drug combination as Kentucky.  But the plurality limited both its analysis and its holding to Kentucky.  The Baze decision upheld Kentucky’s protocol but failed to advise lower courts on how to adjudicate any other lethal injection challenge.  By contrast, the Court issued a far more maximal opinion in Kennedy v. Louisiana,2 when it held that the death penalty may not be used to punish child rape.  The Court in that case articulated a broad doctrine prohibiting the death penalty for any crime against an individual whenever the victim’s life was spared.

Of course, the distinction between minimalism and vertical maximalism is a matter of degree, not of kind.  Neither method of opinion writing can be reduced to a single formula or precise definition.  Instead, each constitutes a general disposition toward issuing relatively narrow or relatively broad opinions.  Furthermore, these approaches to opinion writing do not commit the Court to specific rulings on the merits.  In a constitutional case, for example, a minimalist or a vertically maximal opinion might either uphold or invalidate government action.

But there is a fundamental distinction between these forms of opinion writing: the way in which they allocate decision-making responsibility among courts.  As Fred Schauer has explained, a broad judicial precedent tends to constrain future courts and thereby concentrate decision-making authority in the precedent-setting court.3 For example, the Court’s decision in Kennedy v. Louisiana governs any lower court case involving a crime against an individual; lower courts know that, in such cases, if the defendant spared the victim’s life, the death penalty is invalid.  By contrast, the plurality’s minimalist decision in Baze largely leaves it up to lower courts to determine the validity of lethal injection protocols in states other than Kentucky.  The Baze decision thus delegates considerable decision-making authority to lower courts.

Why should we be concerned about the allocation of decision-making responsibility between the Supreme Court and the lower federal and state courts?  The concern, in my view, stems from the structure of the Constitution.  Drawing upon Article III and the Supremacy Clause, I assert that the Constitution creates a hierarchical judiciary and gives the Court a “supreme” role in defining the content of federal law for the judiciary.  Although this definition of the Court’s role is contestable, this notion seems to have considerable support in our constitutional tradition.4 Indeed, the Court itself has declared that it has a “responsibility to say what a [federal] statute means” and that lower courts have a corresponding “duty . . . to respect [the Supreme Court's] understanding of the governing rule of law.”5

Notably, although many scholars appear to have accepted this hierarchical vision of the judiciary,6 they have not realized all of its implications.  A number of scholars have argued that the Court’s “supreme” status in the judicial hierarchy places limits on Congress’s power to regulate Supreme Court jurisdiction.  Scholars have also focused on what this hierarchical structure means for the lower courts, generally concluding that inferior federal and state courts have a constitutional duty to abide by Supreme Court precedents.

Scholars have not, however, considered that the Supreme Court may itself need to take action to preserve its “supreme” position in the judicial hierarchy.  That is the focus of my inquiry.  In our judicial system, the Court has few mechanisms at its disposal to communicate its views on federal law to the “subordinate” federal and state courts.  The Supreme Court has no authority to select, promote, or dismiss its judicial subordinates.  Inferior federal court judges enjoy the same life tenure and salary protections as Supreme Court Justices, and state court judges are subject to (and, thus, protected by) the selection and removal processes established by their respective states.

The constitutional structure appears to offer the Court only one mechanism to perform its “supreme” role in the judicial hierarchy: appellate review.  The Court can ensure its supremacy over the content of federal law by examining the legal determinations of subordinate courts.  Congress may, of course, make “exceptions” to the Supreme Court’s appellate jurisdiction.  But I bracket that issue for now.  For present purposes, I am interested in how the Court can use its appellate review authority to preserve its hierarchical status in those areas over which it has jurisdiction (as it currently has over most federal law).

The Supreme Court can exercise its appellate review power in essentially two ways.  First, it can engage in what I call “error correction”: reversing specific lower court decisions with which it disagrees.  Second, the Court can employ “precedent setting”: articulating legal rules in written opinions that will serve as precedents for lower courts in that case and future cases.  The Court may of course perform both functions in the same case.  But, for purposes of this analysis, it is useful to distinguish between these two basic forms of appellate review because they roughly correspond to minimalism and vertical maximalism.  When the Court issues a minimalist opinion, it engages in a kind of error correction.  Indeed, a minimalist opinion is designed to resolve only “the case at hand,”7 and thus to have little precedential impact in future cases.  By contrast, when the Court issues a vertically maximal opinion, it necessarily establishes a precedent for inferior courts to apply in future cases.

I do not claim that the constitutional structure, in the abstract, favors either error correction or precedent setting as a mode of appellate review.  I thus also do not claim that the Constitution inherently prefers either minimalism or vertical maximalism.  Instead, I assert that the Supreme Court should use the mode of appellate review that will most effectively preserve its hierarchical status, given the practical constraints on the judiciary in a given historical period.

At the Founding, error correction may have been the Court’s only effective means of performing its “supreme” constitutional role.  Although the Court held its first session in 1790, its opinions were not widely distributed until at least the 1830s.  As a result, the early Court could not simply issue written decisions and expect its precedents to be obeyed.

The early Court also had mandatory appellate jurisdiction and had the capacity to resolve every case that came before it on appeal.  During its first few decades, the Court never had more than a few hundred cases on its docket.  Indeed, one illustration of the Court’s low workload was its rule allowing unlimited time for oral argument; in Gibbons v. Ogden (1824),8 for example, the Court heard argument for twenty hours over five days.9 In that kind of an environment, the Court could effectively supervise the inferior federal and state courts by (at least in part) issuing narrow decisions that corrected errors in specific lower court rulings.

But the workload of the Supreme Court and that of the lower federal and state courts increased dramatically beginning in the late nineteenth and early twentieth centuries.  The docket pressures grew to the point that the Court no longer had the capacity to review every lower court decision that came before it on appeal.  As a result, in the early 1920s, Chief Justice William Howard Taft asked Congress for legislation to ease the burden on the Court.  Congress responded with the Judiciary Act of 1925, which substantially reduced the Court’s mandatory appellate docket and replaced it with discretionary review via writs of certiorari.  In 1988 (again, in response to requests from the Court), Congress further expanded the Court’s certiorari jurisdiction, so that it today encompasses virtually every case that the Court hears on appeal.

The 1925 and 1988 Judiciary Acts signaled a transformation in the Supreme Court’s role in the judicial hierarchy.  Both pieces of legislation were premised upon a view of the Court as “the head of the Judiciary of the Nation,”10 which should concentrate its limited resources not on correcting errors in specific lower court rulings, but instead on developing legal principles that would have a broader impact.  Thus, Chief Justice Taft (and others) insisted that the Court should hear a case only when “the principle involved is such that it is important to have a general exposition of it for the benefit of the lawyers, for the benefit of the inferior courts, and for the benefit of the public at large[.]“11

The Supreme Court’s challenges in overseeing the lower federal and state courts have only increased in the two decades since the 1988 Judiciary Act.  The workload of the federal courts of appeals has doubled during that period from 30,000 cases per year to 60,000.  The number of requests for Supreme Court review has likewise risen dramatically.  The Court’s docket has grown from approximately 5000 cases in the 1980s to around 9000 today (while the Court grants review in fewer than 90 of those cases).  There have been calls in recent years for the Supreme Court to issue more opinions, and I endorse such proposals.  But, even if the Court decided 150 or 200 cases per year (as some have suggested), it could dispose of only a fraction of its 9000-case docket and could not possibly correct every error in lower court interpretations of federal law.

Chief Justice Roberts’s call for minimalism thus comes at a rather surprising time in the Supreme Court’s institutional history.  Minimalist decisions like Baze resolve only the case at hand and thus provide little guidance to lower courts in future cases.  And, unlike its predecessor in the early nineteenth century, the current Supreme Court lacks the capacity to provide the needed guidance on subsequent review.  Accordingly, when the current Court issues a minimalist opinion, it leaves much to be decided by the lower courts and thereby delegates its “supreme” law declaration function to its judicial inferiors.

For these reasons, I argue that minimalism is the wrong approach for the current Supreme Court.  The Court should instead aim to issue broad precedents that help clarify the law and provide guidance to lower courts in the many cases that it lacks the capacity to review.  In other words, to serve its constitutional role in this judicial hierarchy, the Court should adopt a presumption in favor of vertical maximalism.dingbat


Copyright © 2009 Cornell Law Review.

Tara Leigh Grove is an Assistant Professor at Florida State University College of Law.

This Legal Workshop Editorial is based on the following full-length Article: Tara Leigh Grove, The Structural Case for Vertical Maximalism, 95 CORNELL L. REV. 1 (2009).

  1. 128 S. Ct. 1520 (2008).
  2. 128 S. Ct. 2641 (2008).
  3. See FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 182-83 (1991). Although Professor Schauer applies this theory temporally (noting the ways in which past judicial decisions can bind future courts), his analysis also applies to the allocation of decision-making responsibility among courts within a judicial hierarchy.
  4. See, e.g., Sanchez-Llamas v. Oregon, 548 U.S. 331, 354 (2006) (stating that treaty interpretation under federal law “‘is emphatically the province and duty of the judicial department,’ headed by the ‘one supreme Court’ established by the Constitution” (emphasis added) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803))); THE FEDERALIST NO. 82, at 494 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (describing the Court as “that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions”).
  5. Rivers v. Roadway Express, Inc., 511 U.S. 298, 312 (1994) (emphasis added).
  6. See, e.g., Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817, 873 (1994) (urging that the Court’s “essential function” is to “provid{e} general leadership in defining federal law”).
  8. 22 U.S. 1 (1824).
  10. Letter from William Howard Taft to Senator Reed Smoot 2 (July 3, 1925), Taft Papers, microformed on William H. Taft Papers, Reel 275 (Library of Congress).
  11. Jurisdiction of Circuit Courts of Appeals and United States Supreme Court: Hearing on H.R. 10479 Before the H. Comm. on the Judiciary, 67th Cong. 3 (1922) (statement of C.J. Taft).


  • The Constitution also suggests a hierarchy in which the central entity merely supervises its subordinates and allows them free reign except with respect to certain enumerated responsibilities: that is, the federalist model of a central government with the subordinate states. It seems to me that an argument from the structure of the Constitution cuts both ways, if indeed it really cuts one way or the other.

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