Why Our Separation of Powers Jurisprudence Is So Abysmal

Abstract

Separation of powers jurisprudence in the United States is in an abysmal state. That conclusion emerges clearly from virtually every article in this symposium. The kindest thing that anyone seems to be able to say about recent separation of powers decisions is that in certain cases the Supreme Court happened to reach the right result, albeit for the wrong reasons. Some commentators, while critical of the Court's reasoning (or lack thereof), appear to take great comfort from their ability to write "alternative opinions" in which they supply reasoned rationales for the Court's results. In my opinion, this draws just the wrong lesson. Far from being a hopeful sign, it is a damning commentary on the abysmal state of our current separation of powers jurisprudence that any reasonably competent law professor can supply better opinions than the justices of the Supreme Court in separation of powers cases.