The idea of institutionalism figures prominently in today’s debates about the role of federal courts in American democracy. For example, Chief Justice Roberts is often described as an institutionalist who seeks to preserve the Supreme Court’s power or reputation. But what exactly is institutionalism, and should judges be institutionalists? Although institutionalism is invoked in public disputes over the future of the federal judiciary, it is much less frequently theorized in depth.
This Article offers an extended analysis and defense of judicial institutionalism. It conceptualizes institutionalism as an approach to judging that meaningfully takes into account two interests of the judiciary: legitimacy—understood as public confidence in the courts—and the efficient administration of the court system. Institutionalism bolsters the enforceability of court decisions and helps to prevent a situation in which one side of salient cultural debates is a “permanent loser” in the judicial process. Institutionalist judges do not flout the law; instead, institutionalism properly shapes their view of what the law requires.
The Article offers several practical options for implementing institutionalism in the real world. These options cover such areas as the certiorari process, equitable remedies, unpublished opinions, justiciability, stare decisis, and the “merits” of a case. The Article also responds to several objections to institutionalism, such as the critique that the federal courts ought to be disempowered and that judges are not competent to assess effects on the institution. In particular, the Article addresses the concern that institutionalist judges improperly engage in deception about the basis for their decisions. In response, the Article argues that complete transparency in judging is not required and may not even be expected by the public.
In sum, the Article lays the conceptual groundwork for an institutionalist approach—at a time when the acceptance or rejection of institutionalism will have a major impact on many areas of law and the federal courts’ trajectory.