Judicial Supremacy and Its Discontents

Abstract

This essay examines judicial supremacy and some of its discontents, old and new. Part I surveys the curiously quiet posture of the public and their representatives today on the issue of judicial supremacy. Part II contrasts this quiet with other eras when neither the people nor their representatives willingly accepted judicial supremacy. Part III considers the views of two important contemporary critics of judicial supremacy who write from very different constitutional and political perspectives.

Michael Paulsen argues that the President, as head of the coordinate and equal executive branch of the national government, has the power to interpret the Constitution for himself, is not obliged to adopt the Court's interpretation of the Constitution, and may even refuse to execute orders from the Court.

Professor Larry Kramer argues that the Rehnquist Court has transformed judicial supremacy into "judicial sovereignty," threatening to erase the idea of "popular constitutionalism" under which the people themselves are ultimately responsible for interpreting and implementing their Constitution.

The author will make the negative case that these critiques of judicial supremacy miss the mark. His argument, especially as it relates to Paulsen's thesis, rests on the admittedly contestable premise that advocates for changing longstanding practices bear the burden of persuasion for changing them.

Keywords: judicial supremacy, Constitution, Supreme Court