Judicial Supremacy in Comparative Constitutional Law

Abstract

This article challenges the prevailing conception of judicial supremacy in comparative constitutional law as informed by U.S. and western models of constitutionalism, and argues for reconceptualizing judicial supremacy in a way that captures the broader range of institutional roles courts play globally. Drawing on insights from global constitutional systems, this is the first article to argue for and develop an institutional conception of judicial supremacy that focuses on three key institutional roles played by courts globally: constitutional guardianship, institutional guardianship, and governance optimization. It then provides a dynamic account of the emergence of “expansive” judicial supremacy in India through a study of the Indian Supreme Court’s assertion of these institutional roles.

The article seeks to uncover the institutional conception of judicial supremacy and its global applicability by comparatively analyzing the institutional roles asserted by courts in India, Germany, Turkey, Colombia, and South Africa. It concludes by suggesting that India represents an “expansive” model of judicial supremacy that poses challenges for regime politics theories of judicial power and constitutionalism, by illustrating how courts themselves can redefine constitutional norms, consolidate institutional control over the judiciary, and restructure governance. Reconceptualizing judicial supremacy based on courts’ institutional roles has implications for the comparative study of public law and courts, and normative implications in terms of understanding the broad and varied role courts can play in protecting and stabilizing constitutionalism.

Keywords: constitutionalism, colombia, turkey, germany, india, south africa, judicial appointments, constitutional guardian, basic structure doctrine, constitutional entrenchment, judicial supremacy, comparative constitutional law, judicial appointments