52 Pages Posted: 3 Dec 2008
Date Written: December 1, 2008
Skepticism concerning the legitimacy of judicial review typically occurs without distinguishing between judicial review and judicial supremacy. The former gives the Court a say in evaluating the constitutionality of legislation and other government conduct. The latter gives the Court the final say over these matters. This Article defends the Court's role in judicial review but rejects the practice of judicial supremacy. The Article first critically examines some of the more important attempts to justify judicial supremacy and finds them wanting. It then explains why judicial review, as the practice of applying American political philosophical concepts such as federalism, the separation of powers, liberty, and equality to concrete contexts, is the appropriate role for courts in a republican democracy. To value judicial review as applied political philosophy does not commit one to judicial supremacy. Indeed, judicial review is valuable even if other branches of government or the people themselves have the final word in determining the constitutionality of legislation. Self-government thrives when it includes judicial review. By contrast it tends to founder when it replaces judicial review with judicial supremacy.
Keywords: judicial review, judicial supremacy, federalism, courts, constitutional law
JEL Classification: K1
Suggested Citation: Suggested Citation
Lipkin, Robert Justin, What's Wrong with Judicial Supremacy? What's Right About Judicial Review? (December 1, 2008). Widener Law Review, Vol. 14, No. 1, 2008; Widener Law School Legal Studies Research Paper No. 08-85. Available at SSRN: https://ssrn.com/abstract=1309757