Tuesday on “The Conservative Conscience” podcast, Conservative Review senior editor Daniel Horowitz spoke with Vanderbilt Law School Professor Brian Fitzpatrick on the power of the lower courts.
Fitzpatrick, who clerked for Ninth Circuit Judge Diarmuid O’Scannlain and Antonin Scalia, explained that the power of the lower courts to change federal law is largely due to their ability to enact nationwide injunctions, which the Supreme Court is reluctant to overturn.
Horowitz pointed out that a more conservative Supreme Court would not change this dangerous pattern but would prefer to be uninvolved.
“The lower courts, at least the ones that are being shopped to, are very far out there, making very earth-shattering opinions, particularly on settled immigration law,” Horowitz explained. “… But because of the conservatism of the Supreme Court, meaning the cautious nature … isn’t the problem that the lower courts are the ones doing the involvement? … We’re going to be caught holding the bag from the lower courts, without the relief from the Supreme Court.”
Fitzpatrick suggested splitting the Ninth Circuit into two smaller courts and calling on Congress to stop district judges’ ability to declare nationwide injunctions.
“I think the remedy is with Congress, and reforming the lower court powers and structures, because if you’re hoping the Supreme Court is going to catch and correct all of the mistakes the lower courts make, you’re going to be very disappointed. The Court does not have the resources to do that … and they just don’t have the attitude to be that interventionist,” he said.
“We should be paying attention to [the state courts], because they have just as much power in many ways as the federal courts do, and they get to exercise the power in many, many more cases,” Fitzgerald added.