The Supreme Court lacks a coherent approach to deciding how much to defer to state legislatures when reviewing allegedly unconstitutional legislation. The Court grants very little deference to state legislatures in dormant Commerce Clause cases but significant deference to state legislatures in Fourteenth Amendment cases. The Court has never acknowledged this divergence, let alone justified it. Scholars have also failed to note this divergence or explore whether it can be justified. By ignoring this divergence, the Court and scholars have ignored a situation that exacerbates existing power imbalances and fails to recognize a more promising approach to judicial deference.
This Article argues that the Court should base its level of deference to legislatures on the political power of the plaintiff challenging the law, engaging in more active review when plaintiffs lack political power and more passive review when plaintiffs are politically powerful. Following this approach, the Court should defer to state legislatures more in dormant Commerce Clause cases and less in Fourteenth Amendment cases—precisely the opposite of its current practice.
F. I. Patti,
Judicial Deference and Political Power in Fourteenth Amendment and Dormant Commerce Clause Cases,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol56/iss1/8