Document Type

Article

Publication Date

2025

Abstract

In figuring out the role of the federal courts in the constitutional structure, the obvious place to start is with the Constitution. But what does the Constitution tell us about the federal courts and the judicial power vested in them?

Surprisingly little—perhaps even shockingly little—when one reflects on it. The “judicial Power” is one of the three governmental powers regarded by the founding generation as having “an unalterable foundation in nature.” The Constitution, however, does not define that power, instead taking for granted that everyone will simply know what “judicial Power” involves. History has proven that assumption to be false. There remain competing conceptions of what “judicial Power” entails, and those competing conceptions profoundly affect how one views the role of the federal courts in the constitutional structure.

My modest contributions in this short article are twofold. First, I will set out the sparse provisions in the Constitution dealing with the federal courts to illustrate just how little they directly specify about the judicial function. Second, I will explain how that missing specification comes from background norms regarding what courts are and what they do. There are competing models of courts. On one view, courts exist principally to resolve disputes, with law declaration an incident of that principal function. On another view, the case-deciding function of courts is an incident to a more fundamental principal power “to say what the law is.” Very different roles for courts emerge from these models. As an illustration of the difference, I will briefly consider the modern controversy over so called “universal” or “nationwide” injunctions. If, as I argue, the case-deciding function is the principal defining feature of the “judicial Power,” with law declaration serving as an incident that helps carry out that principal function, injunctions extending to non-parties to a case look deeply problematic.

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