Abstract Review in Article III Courts

Introduction

That federal courts resolve only “Cases” and “Controversies”¹ when assessing the legality of government policies is increasingly a myth. Many cases decided by the federal courts technically resolve legal disputes between the parties and issue remedies designed to redress legal wrongs, but functionally courts resolve important legal issues about the general legality of federal and state legislation, administrative rules, and executive orders. So federal district courts have blocked state laws regulating social media,² the Biden Administration’s guidance regarding immigration-enforcement priorities,³ and the second Trump Administration’s executive orders on birthright citizenship.⁴ Because of aggregate and representative litigation, lax rules for pre-enforcement review, the remedies available in aggregated pre-enforcement review, and plaintiff-friendly forum selection rules available to ideological litigants,⁵ the federal courts sometimes work like councils of revision for state and federal policies.⁶

Call this phenomenon abstract review in Article III courts.⁷ Abstract review is found in other legal systems, where specialized constitutional courts review the constitutionality of legislation without concrete disputes about the legislation’s application.⁸ Article III courts, on the other hand, are supposed to resolve only concrete disputes about the legal rights of parties.⁹ But our legal system is functioning like a system of abstract review. The subconstitutional rules governing jurisdiction and remedies — along with the incentives of litigants — mean that the dispute-resolution model of Article III fails to describe judicial review of some government policies. Thus, if abstract review is understood in a functional and relative sense, such review occurs whenever a court’s review of government policy effectively resolves a legal issue for all potentially affected plaintiffs, for all potential officials implementing the policy, and in all potential applications.¹⁰ In those circumstances, the formal requirements of Article III do not perform the function of maintaining a system of concrete review.

That functional drift into abstract review, however, poses a threat to judicial review of illegal government action. Unlike other systems that formally embrace abstract review, abstract review in Article III courts occurs within a decentralized judiciary. Any district court has the power to engage in such review, and plaintiffs have an incentive to litigate in a district court inclined to agree with their position.¹¹ Decentralization thus risks conflict with the political branches, because federal district courts selected by the plaintiffs adjudicate the general legality of government policy. The risk is that decentralized abstract review will, ultimately, erode the political support for judicial review by blocking the policies of the executive branch. That dynamic is one potential structural theory of the conflict between the courts and political actors during the last few presidential administrations, and it may contribute to the sense — implicit in the subject of this Symposium — that judicial review is somehow in “jeopardy.”

I discuss potential reforms that could rationalize abstract review. The reforms would centralize abstract review in courts of appeals and the Supreme Court, but without reducing the capacity of federal district courts to engage in relatively concrete review of government policy. Centralizing reforms might include, for example, presumptive stays pending appeal, certification from courts of appeals to the Supreme Court, a mechanism to transfer cases from federal district courts to the Supreme Court’s original jurisdiction, and a specialized court composed of trial and appellate judges drawn from throughout the country to hear certain challenges to major government policies.

Part I offers two stylized models of judicial review: a classic American model of decentralized concrete adjudication and a European model of centralized abstract review. Part II shows that the American model increasingly operates like a system of decentralized abstract review. Part III offers concrete reforms that could rationalize our system of abstract review by channeling abstract review to the appellate courts or the Supreme Court. A conclusion returns to the question of the conference: Is judicial review in jeopardy? I suggest and reject two possible crises before proposing a third that this paper’s proposals begin to address.

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