Alexander Hamilton in Federalist 78 dismissed the federal judiciary as the “least dangerous” branch. It has neither the sword nor the purse. But additional reasons explain why courts are the caboose, not the locomotive of public policy.
Their power is invoked only by litigants. Courts are not self-propelled. Litigation, however, is deterred by lead-footed justice, costs, time lost, and indefinite psychological stress. Thus, legendary Judge Learned Hand exclaimed, “I should dread a law suit beyond almost anything else short of sickness and death.” The lesser the number of cases, the lesser the number of binding judicial precedents that check the President and Congress.
The vast majority of legal claims are not worth the price of admission to the courtroom. The volume of litigation in the United States Supreme Court has plunged by 50 percent or more over the last decades.
Yet the Court moves heaven and earth to further shrink its authority through the doctrine of Article III standing. It closes the courthouse doors to any litigant who cannot show (1) an actual or imminent concrete injury not shared by the public generally, (2) proximately caused by the defendant’s acts or omissions, and (3) which would be remedied by the judicial relief requested. The doctrine of standing is commonly impossible to satisfy because injuries routinely have multiple causes. Further, lawless government action is regularly too remote to establish proximate cause or injures all equally.
Think about unconstitutional wars that wreak havoc with the economy and spike taxes. Ordinary citizens have no standing to seek litigation to end the wars because their injuries are common, remote, or financially de minimis. Soldiers in the field do not sue because it would be the death knell of their military careers. It is unsurprising that the Supreme Court in 234 years has never once subjected to judicial review the constitutionality of a presidential war not declared by Congress—although war stands at the summit of all government powers and endangers liberty more than all other powers combined.
I have worked in all three branches of government addressing constitutional issues. The Supreme Court’s voice is almost inaudible because the hundreds if not thousands of constitutional issues decided daily by in the Executive Branch and Congress are nonjusticiable because of standing, mootness, time and resource constraints, or expense. For every constitutional opinion issued by the Supreme Court, there are 10,000 decided within the executive and legislative branches.
The Supreme Court should expand, not contract standing, to provide urgently needed policing of the political branches which are fueled exclusively by ulterior motives to cling to power. Despite its considerable imperfections, you are vastly more likely to receive justice in a federal court than in Congress or the White House where raw power and money are the coins of the realm.