Ramon Feldbrin
Volume 76, Issue 1, 1-46
Judicial review has distinct purposes, difficulties, and modalities, but there are no guideposts as to how these features ought to be addressed in procedural terms. The reason is a deep-seated, but largely unarticulated, assumption that constitutional litigation is simply governed by the same rules as other civil litigation in the federal courts. Yet the premise is fundamentally false. This Article draws new attention to rules and practices that have historically regulated constitutional cases and set them apart from the typical way all other cases make their way through the judicial system. These procedures include, among other things, the requirement to convene a three-judge federal district court, direct and mandatory appeal to the Supreme Court, and certiorari before judgment in the courts of appeals. When these specialized rules for constitutional litigation are viewed together, as they should be, it becomes evident that they are part of an important but uncharted area of federal procedural law: constitutional procedure.
This Article elaborates on the implications of a unified discourse on the federal rules of constitutional procedure and challenges some broader themes and popular assumptions about the process of judicial review. First, the Article demonstrates that the American model of judicial review does not by definition reject the use of specialized constitutional tribunals. Second, the Article shows that judicial review in the federal court system is not necessarily diffused and decentralized. Third, and relatedly, the Article uncovers the fact that percolation—allowing issues to work their way through the hierarchy of the federal judiciary—has never been a dominant value in constitutional cases as it is in other types of federal litigation. Finally, and perhaps most significantly, the Article makes it clear that our system of judicial review has never been fully committed to a single procedural framework and that much of constitutional procedure is dynamic and ever-changing. Hence, we must not take for granted the current procedural setting, and we should give attention to the impact of procedural design choices—and those who make these choices—on the outcome of constitutional cases and the legitimacy of judicial review.