The Supreme Court as a Babysitter: Modeling Zubik v. Burwell and Trump v. International Refugee Assistance Project Rights

This Article reveals for the first time the emergence in two
recent Supreme Court decisions of an innovative adjudicative
function in constitutional cases, which we suggest calling the
"Babysitter Model." According to this model, as implemented in
Zubik v. Burwell and Trump v. International Refugee Assistance
Project, the Supreme Court does not provide a well-founded
resolution, but rather accompanies, attends, and encourages other
branches to carry out their constitutional obligations. The case is
ongoing until the dispute is resolved. This Article analyzes the
reasons that motivated the Court's dispositions of Zubik and Trump,
presents the Babysitter Model and distinguishes it from other judicial
review methodologies, and proposes an initial normative evaluation
of the model.