National Judicial Power and the Dormant Commerce Clause

We develop a game in which a court monitors states as they regulate trade among themselves. Contrary to commentators who see Supreme Court oversight of state burdens on interstate commerce as the product of a powerfully ascendant court, we argue that the 'dormant' Commerce Clause (DCC) originates as the strategic product of an institutionally weak court. We provide three lines of argument. First, we refute the notion that merely observing the court ruling against state governments and those governments complying with its ruling is evidence of judicial power. Second, we show that the equilibria of our weak court model directly implies the doctrinal contours of the DCC while the ascendancy hypothesis does not. Finally, we provide evidence that the court announced a weaker version of the DCC doctrine than sincerely preferred by pivotal justices on the court. Our arguments invite a revised understanding of the role of the court in the development of the American political system