Book Review by Martin L.C. Feldman
Dissenting in Mistretta v. United States, Justice Scalia comments on the steadfast mystery that confronts the judiciary and affects or clouds the public's perception about how judges decide cases: What is judicial discretion and how is it used? With predictable skill and insight, Justice Scalia comments:
Precisely because the scope of delegation is largely uncontrollable by the courts, we must be particularly rigorous in preserving the Constitution's structural restrictions that deter excessive delegation. The major one, it seems to me, is that the power to make law cannot be exercised by anyone other than Congress, except in conjunction with the lawful exercise of executive or judicial power.
The whole theory of lawful congressional “delegation”' is not that Congress is sometimes too busy or too divided and can therefore assign its responsibility of making law to someone else; but rather that a certain degree of discretion, and thus of law-making, inheres in most executive or judicial action, and it is up to Congress, by the relative specificity or generality of its statutory commands, to determine—up to a point—how small or how large that degree shall be. Thus, the courts could be given the power to say precisely what constitutes a ‘restraint of trade,’ or to adopt rules of procedure, or to prescribe by rule the manner in which their officers shall execute their judgments, because that “lawmaking”' was ancillary to their exercise of judicial powers . . . .
Although Justice Scalia was speaking to the question of when congressional delegation is lawful, his words touch upon fundamental judicial powers and focus our attention on the extent to which the notion of judicial restraint gives content to judicial discretion—an issue that has been debated for much of this century, largely without the emergence of clear answers.
About the Author
Martin L.C. Feldman. Hon. Martin L.C. Feldman is a United States District Judge for the Eastern District of Louisiana, in New Orleans.
Citation
65 Tul. L. Rev. 451 (1990)