Electing Rigidity over Liquid Power: Formalism, Minimalism, and Anti-Statism in the American Judiciary

In the context of global constitutional adjudication, courts have often deployed their authority flexibly to correct blockages in the democratic process as well as ensure rights enforcement where weak political institutions are unwilling or unable to take such action. The efficiency-enhancing and rights-protecting virtues of such “liquid power” notwithstanding, it cannot be assumed that rights-adjudicating institutions will in fact make use of this power. In fact, recent trends in the United States shows the opposite: a strategic deployment by the judiciary of “rigid” doctrines of deference and non-justiciability to block enforcement of broad rights claims upon the American state. This paper explores the twin doctrines of political questions and standing (particularly in the context of mass class actions), two elements of American rights jurisprudence that typify courts’ formalist and minimalist rejection of liquid power.