Article III, Judicial Restraint, and This Supreme Court

Authors

Joseph S. Diedrich, Husch Blackwell LLPFollow

Abstract

Article III of the U.S. Constitution establishes a federal judiciary with powers and functions separate and distinct from the other branches. During its October 2017 Term, the U.S. Supreme Court decided three cases that turned on an interpretation of Article III power: Patchak v. Zinke, Oil States Energy Services v. Greene’s Energy Group, and Gill v. Whitford.

This Article argues that in each of those three cases, a majority of the

Court coalesced around a unifying principle of judicial restraint. By “judicial restraint,” this Article refers to the principle that the judiciary should respect and defer to the elected branches. In cases interpreting Article III, then, judicial restraint instructs the Court to refrain from asserting its own power and to instead decide in favor of another branch’s power. In Patchak, Oil States, and Gill, despite stark doctrinal differences, the Court

refrained from asserting the judiciary’s own power and chose instead to exercise judicial restraint. Such restraint can thus be viewed as a common undercurrent guiding the Court’s Article III jurisprudence.

At the same time, simply comparing the Court’s holdings at the case level overlooks important nuances. Even though a judicially restrained holding commanded a majority in all three cases, each of those majorities was differently constituted. To that end, this Article also examines the Justices’ individual approaches to Article III jurisprudence. This examination reveals, perhaps unsurprisingly, that other principles influence certain Justices and that certain Justices, at times, vote inconsistently. Nonetheless, each Justice has, to a greater or lesser extent, embraced the principle of judicial restraint in Article III cases. Even accounting for the Justices’ individual differences, this Article ultimately concludes that holdings consistent with judicial restraint will likely continue to command a majority in Article III cases.

Recommended Citation

Joseph S. Diedrich, Article III, Judicial Restraint, and This Supreme Court, 72 SMU L. Rev. 235 (2019)