Judicial Supremacy: Palladium of Liberty or Academic Paradox?

33 Constitutional Commentary 101 (2018)

George Mason Legal Studies Research Paper No. LS 18-10

26 Pages Posted: 7 Apr 2018  

Nelson Lund

George Mason University School of Law

Date Written: March 26, 2018

Abstract

Martin H. Redish, a distinguished federal courts and constitutional law scholar, has written a remarkable book-length defense of judicial supremacy. Alarmed by the work of academics whom he sees as dangerously loose cannons—including Bruce Ackerman, Larry Kramer, and Michael Stokes Paulsen—Redish seeks to reestablish a “formalist traditional model” that takes the written Constitution seriously. This model, which is emphatically not originalism, treats the “prophylactically insulated judiciary [as] the beating heart of the structural brilliance that defines American constitutionalism.”

After defending his claim that the Supreme Court rightly enjoys supremacy in the interpretation of the written Constitution, Redish draws a number of novel inferences about its implications. Unlike the President and other executive officials, for example, judges may be impeached only for criminal behavior, and then only if the conduct threatens the integrity of the judicial role. The Constitution requires that state judges be granted life tenure. The judiciary has the constitutional power and obligation to assure that Congress does not deceive the electorate as to the manner in which its legislation alters the preexisting legal, political, social, or economic topography. The Fifth Amendment repealed the Suspension of Habeas Clause in Article I.

Even if one doubts that the Supreme Court should or ever will accept the arguments Redish makes, readers of his book will be forced confront proposals that they surely would not have conjured on their own.

Keywords: Supreme Court, federal courts, judicial supremacy, judicial interpretation, American constitutionalism, impeachment, formalist traditional model, originalism, judicial role, judicial conduct

JEL Classification: K10

Suggested Citation

Lund, Nelson, Judicial Supremacy: Palladium of Liberty or Academic Paradox? (March 26, 2018). 33 Constitutional Commentary 101 (2018); George Mason Legal Studies Research Paper No. LS 18-10. Available at SSRN: https://ssrn.com/abstract=3156328

Nelson Robert Lund (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)

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