Document Type

Article

Publication Date

2023

Abstract

Federal judges frequently avoid constitutional cases that raise difficult issues of public policy, using doctrines like standing and political questions as shields against judicial overreach. But a new and dangerous sword that allows judges to declare constitutional cases nonjusticiable is emerging in federal courts: a manageability prerequisite. The manageability prerequisite that emerged first in the Supreme Court’s gerrymandering jurisprudence and has since spread virulently throughout the circuit and district courts threatens to close the courthouse doors to a wide swath of litigants. Left unchecked, manageability could both significantly weaken the weakest branch and provide judges unbounded discretion to preserve any status quo that aligns with their policy preferences. This Article is the first to identify the manageability prerequisite that looms over federal courts. It describes and catalogues manageability’s expansion, detailing both its breadth and its amorphous contours. That empirical analysis reveals the threat manageability poses to judicial resolution of issues like voting rights, environmental law, criminal justice reform, women’s health, and many others. That threat need not be realized. As this Article’s normative analysis demonstrates, manageability is largely duplicative of existing workability review under stare decisis doctrine. Furthermore, courts are certain to apply manageability inconsistently because they lack information on the effectiveness of a legal test when making an ex ante determination of its viability. Federal courts should not adopt manageability, even if in exchange they must permit more frequent ex post reversals after workability review. Such a grand bargain will allow courts to capitalize on the utility of the occasional unmanageable legal test, especially in cases involving novel issues of pressing importance to the nation.

Publication Title

Boston College L. Rev.

Volume

64

First Page

1331

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