Lost at Sea: The Continuing Decline of The Supreme Court in Admiralty

For the first 200 years of its history, the United States Supreme Court served as the primary leader in the development of, and its cases the primary source of, the admiralty and maritime law of the United States. That appears to be changing. The Court’s admiralty cases over the last quarter century indicate that it is slowly giving up its traditional leading role in creating and developing rules of admiralty law, and instead deferring to Congress to make those rules, a trend that is tantamount to abandoning its Article III constitutional duty to serve as the country’s only national admiralty court. Some scholars believe that this trend is just as it should be. It has been recently argued that the Court’s two centuries of federal common lawmaking in admiralty is, and always has been, unconstitutional, and ought to be curtailed with few exceptions. Federal admiralty law should therefore be “normalized” and brought into conformity with the same principles of federalism and separation of powers which govern most other areas of federal law. This Article examines the Court’s most recent admiralty case, Lozman v. City of Riviera Beach, Florida, and argues that it represents a striking escalation in the Court “normalizing” federal admiralty law. The many objectionable features of Lozman, however, form the basis of a pragmatic argument against the Court adopting a normalization approach. In largely ignoring hundreds of years of its own cases, the Court’s reasoning was arbitrary, unpredictable, and provides virtually no guidance to the state and lower federal courts. Properly understood, the troubling aspects of the case justify a return to the Court’s traditional, constitutionally prescribed role of making rules of decision in admiralty in the manner of a common law court