Readers of this website should be familiar with the arguments against “libertarian centralism” advanced by Stephan Kinsella, Gene Healy, and others. The argument is generally rooted in the Constitution’s Fourteenth Amendment, and whether it allows federal courts to exercise veto power over the acts of state and local governments. The pro-centralism forces – led by Beltway groups including the Cato Institute and the Institute for Justice – have invested substantial resources pursuing federal litigation to “advance liberty.” The anti-centralists (and I am one) view that as a contradiction in terms.
After thinking about some of the more inane examples of recent Supreme Court jurisprudence – Kelo v. New London, Lawrence v. Texas, and the forthcoming decision in the California child abuse case – another course of attack occurred to me: What if the Supreme Court’s appellate jurisdiction was eliminated in its entirety? In other words, imagine a federal court system where no appeals were permitted beyond the 13 circuit courts of appeal. (The Supreme Court could be retained for ceremonial purposes and to exercise “original jurisdiction” in a handful of cases, like border disputes between the states.) Would such a system prove to be a net positive or negative for liberty?Unlike the circuit courts, which most hear most appeals presented, the Supreme Court has been allowed to cherry pick its cases since Congress delegated that power in 1925. In the last completed term, the court disposed of just 70 cases by written opinion. The overall balance of individual liberty would scarcely be harmed by eliminating six dozen or so glorified journal articles authored by nine unelected judges and their 30-plus recent law school graduates.
The knee-jerk reaction to eliminating the Supreme Court’s appellate jurisdiction is that there would no longer be a “final arbiter,” but the Gang of Nine rarely resolves any genuinely thorny legal question – especially if it involves substantive rights. The justices are quite adept at establishing vague “tests” for constitutionality, but the details are almost always left to the lower courts. The Supreme Court is only a “final” arbiter in the sense that its Oz-like mystique lulls people into thinking a problem has been solved for good.
But the real value in abolishing Supreme Court appeals is that it would end the permanent carnival of jurisprudence that surrounds the process: No more amicus briefs from Beltway groups – including an alarmingly high number of self-described “libertarian” outfits – that waste dollars and man hours; no more Imperial Guard of Supreme Court clerks who dominate the appeals process without even the pretense of public accountability; no more ex-clerks trading on their “experience” to secure high-paying posts with law firms and law schools; no more soap operas over nominating and confirming justices; and most importantly – a goodbye, farewell, and Amen to the notion that a five-to-four majority will magically solve our most pressing social problems.
Now on the other side, eliminating Supreme Court cover would finally divert resources to shedding light on the regional appellate courts. This is what centralists often fail to grasp: When you centralize authority, people stop paying attention to the intermediate and lower levels. When Congress gave itself more power, the state legislatures became irrelevant (a process greatly abetted by the Seventeenth Amendment.) The appellate courts already do the lion’s share of federal judicial work, but the Supreme Court functions as a bright, shiny object that distracts most laypersons.
But let’s make one thing clear. Decentralization is not an argument for “regulatory competition,” which is a fetish among some libertarians. Competition is only meaningful in a market (private property) context, and not when discussing state actors. The argument is not that “competition” among the circuits will produce better justice; rather, it’s that overall damage to liberty will be minimized when the highest and least accountable portion of the bureaucracy is eliminated. The circuit courts can still do plenty of damage on their own, but ideally that damage would be better contained.
Libertarian centralists may condemn my proposed “judicial lobotomy” as simply the first stage in dismantling the entire federal judicial system. And, of course, they’d be right. Ultimately, there’s a philosophical gorge that can’t be jumped. The Supreme Court is a major impediment to individual liberty. All the Beltway think tanks and all the libertarian public interest lawyers can’t change that. And despite all the statist mythology, there’s nothing logical about concentrating the nation’s “judicial power” in nine individuals with life tenure and few connections to the world outside the court house. I’d rater take my chances scattering the state’s wretched judicial power among 200 or so circuit judges.