Court-state interactions: National judicial power and the dormant commerce clause
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2006 by the Rector and Visitors of the University of Virginia. The institutional relationships of the Supreme Court extend beyond its interactions and dependence on Congress and the president to include the states that make up the American federal system. This essay turns its attention to these relationships and develops a game in which a court monitors states as they regulate trade among themselves. Unlike those commentators who see Supreme Court oversight of interstate commerce as the product of an ascendant Court bending states to its will, this paper argues that the "dormant Commerce Clause" (DCC) originates as the strategic product of an institutionally weak Court. The paper lays out three lines of argument. First, it rejects the notion that observing a Court ruling against state governments and those governments complying with the ruling provides evidence of a strong Court. Secondly, the equilibria of the "weak Court" model in this essay directly implies the doctrinal contours of the dormant Commerce Clause, while the ascendancy hypothesis does not. Finally, this essay offers empirical support that the sincere preferences of a majority of justices inCooley v. Board of Warden (53 U.S. 264 [1851]) supported making interstate commerce the exclusive policy domain of Congress, a move that would have completely disbarred states from regulating interstate commerce. Nonetheless, the Court inCooley embraced a conditional DCC doctrine, a move that is inconsistent with the ascendancy hypothesis but is consistent with the strategic maneuverings of a weak Court. Our results suggest that the U.S. Supreme Court was not historically quite as powerful as it is often portrayed, a conclusion that revises our understanding of the role of the Supreme Court in the development of the American political system.
