[The last of four blog posts drawing on this week's Hallows Lecture at Marquette Law School.]
This final blog post about the role of unstated legal ideas in deforming the Constitution involves a third unstated idea, beyond either the part played by the "three buckets" idea, combined with the "unitary executive" theory, or the contributions of various delegation theories. This unstated idea concerns the Supreme Court's conception of its role.
Students of the Court have identified two polar ideas about how the Court conceives of its role. One, which should be familiar, is called dispute resolution. The Court conceives of its job as resolving disputes between adverse parties, especially when the lower courts have disagreed about the proper disposition of the matter. The second, which commentators have labeled "law declaration," conceives of the Court's role as identifying certain important legal issues and resolving those issues without actually deciding disputes between adverse parties; instead, the Court concentrates on clarifying contested questions about the law and lets the lower courts sort out how to apply the law in the case at hand.
