What Is Judicial Supremacy?
in Comparative Constitutional Theory (Gary Jacobsohn & Miguel Schor eds., Elgar Publishing, 2018)
41 Pages Posted: 8 Sep 2016 Last revised: 9 Mar 2018
Judicial supremacy is a concept frequently employed in both domestic and comparative constitutional theory but rarely carefully defined and systematically analyzed. Scholars typically either assume its meaning or quickly state how they are using the term before warming to their major theme, focusing on some other aspect of judicial supremacy: how did it emerge, what explains its acceptance by other branches of government, is it or should it be tempered in practice by courts not straying too far from the popular will, is it a good, bad, or practically necessary feature of a constitutional system? Jeremy Waldron's observation that the term has "no canonical definition" suggests that it is not always used in uniform fashion but rather in somewhat different ways in different contexts. Moreover, this range of uses helps to explain why, on only slightly closer inspection, various critics or skeptics of "judicial supremacy" around the world ― departmentalists, "hollow hopers," constitutional dialogists ― do not all seem to be making the same point, but appear to be interlocutors in a number of discrete conversations, differing in both the type and content of their arguments and the positions they are marshaled to support.
This chapter attempts to provide the systematic analysis of the concept that is mostly missing and that is a prerequisite for understanding and assessing the several debates in which it plays a central role. It also aims to evaluate its usefulness as a concept in the toolbox of comparative constitutional theory. Part II identifies and disaggregates four distinct senses or conceptions of judicial supremacy, what I shall refer to as "interpretive," "attitudinal," "decisional," and "political supremacy" respectively. It also shows that corresponding to each of the meanings is a distinct opposing or skeptical position. Part III illustrates the multiple meanings by looking at recent resolutions of the same-sex marriage issue by different institutions and mechanisms ― courts, legislatures, popular referenda, courts and legislatures ― in many constitutional systems over the past decade. Part IV attempts to asses the utility of judicial supremacy as a concept in comparative constitutional theory by asking what and how much is at stake in the debates between each conception and its critics. The chapter concludes that, as delimited by the four senses identified, although not as sometimes exaggerated or conflated, it is indeed a useful, non-unitary concept. Its essential status in the field, however, likely turns on further comparative experience.
Keywords: judicial supremacy, departmentalism, constitutional interpretation, same-sex marriage, political empowerment, weak-form judicial review, comparative constitutional theory
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