Judicial Departmentalism: An Introduction

31 Pages Posted: 14 Dec 2016

See all articles by Kevin C. Walsh

Kevin C. Walsh

University of Richmond - School of Law

Date Written: December 13, 2016

Abstract

This Essay introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means for the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these three bodies of law provide the exclusive ways in which constitutional adjudication gives rise directly to binding constitutional law. This Essay argues that our Justices should be judicial departmentalists rather than judicial supremacists.

Keywords: Judicial Supremacy, Judicial Departmentalism, Departmentalism, Stare Decisis, Cooper v. Aaron, Boerne v. Flores, Precedent, Preclusion, Remedies

Suggested Citation

Walsh, Kevin C., Judicial Departmentalism: An Introduction (December 13, 2016). William & Mary Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2884832

Kevin C. Walsh (Contact Author)

University of Richmond - School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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