After Courts: Democratizing Statutory Law

Authors

Ryan D. Doerfler, Harvard Law SchoolFollow
Samuel MoynFollow

Abstract

In Federalist No. 78, Alexander Hamilton argued for locating interpretive authority over law separately from those institutions tasked with formulating it. Hamilton’s vision, never accurate as a description of American practice, has not been credible for a long time. To the extent enormous power is still allocated to judges, our legal institutions have been out of step with our legal theory, which has long regarded them as political actors and policymakers. More practically, every term it is clearer and clearer that the role of the Supreme Court in statutory cases (including checking administrative rulemaking and other processes) is, if anything, more menacing than its role in the rare instances when it deploys its heaviest weaponry of constitutional invalidation. Against progressive calls to reclaim the judiciary, this Article extends our proposal to disempower courts exercising lawmaking authority—to include when they are interpreting statutes alone. Indeed, the same considerations that counsel the constitutional disempowerment of courts counsel their statutory disempowerment, and the allocation or reallocation of their authority over law to politically accountable agents. The heart of our Article offers a survey of court disempowerment strategies and tools, which are comparable to, though not identical with, the disempowerment mechanisms that have been proposed in the arena of constitutional reform. Such strategies and tools are appealing in the short term; but the long term requires a fuller rethinking of our institutions of legal interpretation. Available and existing disempowerment strategies for courts are best conceived as early and partial versions of full-scale allocation of interpretive authority over law to “political” branches and openly political control.

[Judges] have battered their way to supremacy with their double axes; one edge is the control over legislation by its unconstitutionality, the other is such free interpretation of statutes as suits their purposes. —Learned Hand

Recommended Citation

Ryan D. Doerfler & Samuel Moyn, After Courts: Democratizing Statutory Law, 123 Mich. L. Rev. 867 (2025).
Available at: https://repository.law.umich.edu/mlr/vol123/iss5/3