Most debate about the power of judicial review proceeds as if courts primarily invoke the Constitution against the considered judgment of elected legislatures; most constitutional commentary focuses on confrontations between the United States Supreme Court and state or federal legislatures. In fact, the federal courts most often enforce constitutional norms against administrative agencies and street-level bureaucrats, and the norms are enforced not by the Supreme Court but by the federal trial courts. In this Article, Professor Kreimer surveys this "dark matter" of our constitutional universe.
The Article compares the 292 cases involving constitutional claims decided by the Supreme Court during its 1990-1995 Terms with 431 cases which comprise a one-in-ten sample of the reported constitutional cases decided by federal trial courts in 1994. In some ways the trial court sample mirrors the view of judicial review reflected in conventional, Supreme Court oriented commentary: confrontations with legislatures focus on free speech and equal protection issues. In other ways, trial courts and the Supreme Court differ: dormant Commerce Clause cases, like issues of federalism and separation of powers which bulk large in the Supreme Court, are largely absent at the trial level. The most striking finding of this review, however, is that even in the Supreme Court, legislative cases constitute a minority of the occasions for the exercise of judicial review, and that minority shrinks to a barely cognizable fraction at the trial court level. The rights invoked in the bulk of constitutional cases are not the stuff of sophisticated doctrinal elaboration. Rather, the Supreme Court articulates basic standards of physical dignity and fairness and empowers the lower federal judiciary to act as field agents dispensing minimal federal justice.
The Article concludes by examining the implications of these observations for the role of judicial review as it is actually practiced. It argues that the federal trial courts are well-adapted to the role of enforcing demands of minimal decency against street-level bureaucrats, that this enforcement raises few of the problems of the "countermajoritarian difficulty," and that the enforcement is crucial to preserving the ideals of our nation as a civilized society.
Kreimer, Seth F., "Exploring the Dark Matter of Judicial Review: A Constitutional Census of the 1990s" (1997). Faculty Scholarship at Penn Law. 1177.