Judicial Review and Judicial Supremacy

44 Pages Posted: 17 Oct 2014 Last revised: 8 Nov 2014

See all articles by Jeremy Waldron

Jeremy Waldron

New York University School of Law

Date Written: October 2, 2014

Abstract

This paper attempts to identify a particular constitutional evil -- namely, judicial supremacy -- and to distinguish the objection to judicial supremacy from the broader case that can be made against judicial review. Even if one supports judicial review, one ought to have misgivings about the prospect of judicial supremacy. The paper associates judicial supremacy with three distinct tendencies in constitutional politics: (1) the temptation of courts to develop and pursue a general program (of policy and principle of their own) rather than just to intervene on a piecemeal basis; (2) the tendency of the highest court to become not only supreme but sovereign, by taking on a position of something like broad sovereignty within the constitutional scheme (thus confirming Thomas Hobbes in his conviction that the rule of law cannot be applied at the highest level of political authority in a state because any attempt to apply it just replicates sovereignty at a higher level)); (3) the tendency of courts to portray themselves as entitled to "speak before all others" for those who made the constitution, to take on the mantle of pouvoir constituant and to amend or change the understanding of the constitution when that is deemed necessary.

Keywords: constitutions, Hobbes, judicial review, judicial supremacy, judges, judiciary, popular constitutionalism, rule of law, Sieyes, sovereignty

Suggested Citation

Waldron, Jeremy, Judicial Review and Judicial Supremacy (October 2, 2014). NYU School of Law, Public Law Research Paper No. 14-57. Available at SSRN: https://ssrn.com/abstract=2510550 or http://dx.doi.org/10.2139/ssrn.2510550

Jeremy Waldron (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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