Why the Lower Courts Matter

Why the Lower Courts Matter October 15, 2012

Cass Sunstein, who in my view is vastly overrated as a constitutional scholar, nonetheless is spot on in this article. He argues that while the Supreme Court gets all the attention, the lower courts often matter much more when it comes to implementing important regulations:

However fundamental, the debate over the Constitution misses a problem that may well be even more important in American life. Many of the most significant judicial decisions do not involve the Constitution at all. Most people never hear about those decisions. But they determine the fate of countless regulations, issued by federal agencies, that are indispensable to implementing important laws—including those designed to reform the health care system, promote financial stability, protect consumers, ensure clean air and water, protect civil rights, keep the food supply safe, reduce deaths from tobacco, promote energy efficiency, maintain safe workplaces, and much more.

Here as well, Republican judicial appointees differ dramatically from Democratic judicial appointees, and along predictable partisan lines. The outcome of the election will help determine the ultimate fate of these rules in court.

A lot of people don’t realize that the federal courts deal with statutory interpretation more often than they do with constitutional questions. He gives a long list of regulations issued by the Obama administration to implement laws passed by Congress (just passing a bill is only half the battle) and notes that it could matter a great deal which party gets to name the district and appeals court judges who will preside over the frequent legal challenges to those regulations:

We have very recent examples. I mentioned the Environmental Protection Agency’s important cross-state air pollution rule, which is expected to prevent, each year, 13,000 to 34,000 premature deaths, 15,000 nonfatal heart attacks, 19,000 hospital and emergency room visits, and 400,000 cases of aggravated asthma. On highly technical grounds, the court of appeals for the District of Columbia Circuit invalidated that rule just this August, by a majority vote of 2–1. (You can guess the political affiliation of the president who appointed the two judges in the majority.) Also this August, a different panel of the same court invalidated the graphic health warnings for cigarettes, again by a majority vote of 2–1. (Yes, the judges in the majority were appointed by Republican presidents.)

What this evidence suggests is that many of the biggest battles of the day—over health care reform, financial reform, environmental protection, workplace safety, civil rights—will ultimately be settled in court by lower-court judges in rulings that will get little public attention. The Supreme Court has upheld the Affordable Care Act, but some of the rules that are necessary to implement it may turn out to be vulnerable. Unlike presidents, judges often stay in their jobs for decades, and any president is in a position to shift the judiciary in major ways. Of course it is true that the 2012 presidential election will help to establish the meaning of the Constitution. Perhaps equally important, it will help to establish the fate of numerous rules designed to protect public safety, health, and the environment.

Supreme Court nominations are sexy; lower court nominations are generally ignored by the media. But since the Supreme Court hears less than 1% of the cases that are appealed to them, the lower courts matter far more over the short run.

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