Skip to main content
×
×
Home

Judicial Supremacy, Judicial Power, and the Finality of Constitutional Rulings

  • Scott E. Lemieux
Abstract

It is widely assumed that the Supreme Court of the United States has established supremacy over contested constitutional questions, with the power to make final determinations of constitutional meaning. Since the 1960s, most scholars have assumed that legislatures and courts are engaged in a power struggle in which countermajoritarian courts can assert their will over majoritarian legislatures. More recently, a new generation of scholarship has demonstrated that judicial power often expands as a result of the willful empowerment of the judiciary by actors in other branches. Most scholars working with the latter framework, however, do not dispute that the United States has a regime of judicial supremacy—they simply see the political empowerment of courts as an explanation for why judicial supremacy has emerged despite the initially weak position of the judiciary. I argue that the insights of the political empowerment literature should be pressed further. It makes little sense to use the general label “judicial supremacy” for a system in which judicial power remains dependent on choices made by other political actors. Examining several cases that are generally seen as canonical examples of assertions of judicial supremacy, I find that courts were unable to settle constitutional debates, and in addition often either were unable to achieve their policy aims or did not actually require other political actors to do anything. The logic of new empirical findings about the sources of judicial power should compel scholars to question whether aggressive assertions of supremacy in judicial opinions are in fact accurate descriptions of how judicial power functions in the United States.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      Judicial Supremacy, Judicial Power, and the Finality of Constitutional Rulings
      Available formats
      ×
      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      Judicial Supremacy, Judicial Power, and the Finality of Constitutional Rulings
      Available formats
      ×
      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      Judicial Supremacy, Judicial Power, and the Finality of Constitutional Rulings
      Available formats
      ×
Copyright
References
Hide All
Ackerman, Bruce. 2007. The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy. Cambridge, MA: Belknap.
Ackerman, Bruce. 2014. We the People, Volume 3: The Civil Rights Revolution. Cambridge, MA: Belknap.
Balkin, Jack M. 2004. “What Brown Teaches Us about Constitutional Theory.” Virginia Law Review 90(6): 1537–77.
Balkin, Jack M. 2011. Living Originalism. Cambridge, MA: Belknap.
Balkin, Jack and Levinson, Sanfod. 2001. “Understanding the Constitutional Revolution.” Virginia Law Review 87(6): 1045–109.
Berman, Ari. 2015. Give Us the Ballot: The Modern Struggle for Voting Rights in America. New York: Farrar, Strauss and Giroux.
Burgess, Susan R. 1992. Contest for Constitutional Authority: The Abortion and War Powers Debates. Lawrence: University Press of Kansas.
Burns, James MacGregor. 2010. Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court. New York: Penguin.
Carpenter, Dale. 2003. “Judicial Supremacy and Its Discontents.” Constitutional Commentary 20(2): 405–36.
Carter, Dan T. 2000. The Politics of Rage: George Wallace, the Origins of the New Conservatism, and the Transformation of American Politics. Baton Rouge: Louisiana State University Press.
Clinton, Robert L. 1989. Marbury v. Madison and Judicial Review. Lawrence: University Press of Kansas.
Devins, Neal. 1996. Shaping Constitutional Values: Elected Government, the Supreme Court, and the Abortion Debate. Baltimore: Johns Hopkins University Press.
Devins, Neal and Fisher, Louis. 2015. The Democratic Constitution. 2d ed. New York: Oxford University Press.
Douglas, Davison. 2003. “The Rhetorical Uses of Marbury v. Madison: The Emergence of a “Great Case.” Wake Forest Law Review 38: 375414.
Ely, John H. 1980. Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA: Harvard University Press.
Farber, Daniel A. 2003. Lincoln’s Constitution. Chicago: University of Chicago Press.
Fisher, Louis. 1993. “One of the Guardians Some of the Time.” In Is the Supreme Court the Guardian of the Constitution?, ed. Licht, Robert A.. Washington, DC: American Enterprise Institute.
Friedman, Barry. 1998. “The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy.” New York University Law Review 73(2): 333433.
Friedman, Barry. 2010. The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. New York: Farrar, Straus and Giroux.
Friedman, Barry and Delaney, Erin F.. 2011. “Becoming Supreme: The Federal Foundation of Judicial Supremacy.” Columbia Law Review 111(6): 1137–93.
Gibson, James L. and Caldeira, Gregory A.. 2009. Citizens, Courts, and Confirmations: Positivity Theory and the Judgments of the American People. Princeton, NJ: Princeton University Press.
Gibson, James L. and Caldeira, Gregory A.. 2003. The Votes That Counted: How the Court Decided the 2000 Presidential Election. 1st ed. Chicago: University of Chicago Press.
Goldsmith, Lauren Maisel and Dillon, James R.. 2015. “The Hollowed Hope: The School Prayer Cases and Social Change.” St. Louis University Law Journal 59: 409–60.
Goldstone, Lawrence. 2008. The Activist: John Marshall, Marbury v. Madison, and the Myth of Judicial Review. 1st ed. New York: Walker.
Graber, Mark. 1993. “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary.” Studies in American Political Development 7(1): 3573.
Graber, Mark. 1995. “The Passive-Aggressive Virtues: Cohen v. Virginia and the Problematic Establishment of Judicial Power.” Constitutional Commentary 12: 67.
Graber, Mark. 1998. “Establishing Judicial Review? Schooner Peggy and the Early Marshall Court.” Political Research Quarterly 51: 221
Graber, Mark. 2003. “Establishing Judicial Review: Marbury and the Judicial Act of 1789.” Tulsa Law Review 38: 609–50.
Graber, Mark. 2013. A New Introduction to American Constitutionalism. New York: Oxford University Press.
Hirschl, Ran. 2007. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press.
Jackson, Robert Houghwout. 1960. The Struggle for Judicial Supremacy: A Study of a Crisis in American Power. New York: Vintage Books.
Klarman, Michael J. 2001. “How Great Were the ‘Great’ Marshall Court Decisions?” Virginia Law Review 87(6): 1111–84.
Klarman, Michael J. 2006. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. New York: Oxford University Press.
Kramer, Larry D. 2004. “Understanding Marbury v. Madison.” Proceedings of the American Philosophical Society 148(1): 1426.
Lemieux, Scott E. 2003. “The Exception That Defines the Rule: Marshall’s Marbury Strategy and the Development of Supreme Court Doctrine.” Journal of Supreme Court History 28(2): 197211.
Lemieux, Scott E. and Lovell, George. 2008. “Understanding the Impact and Visibility of Ideological Change on the Supreme Court.” In Constitutional Politics in a Conservative Era (Studies in Law, Politics and Society, Volume 44), ed. Sarat, Austin. Bradford: Emerald Group Publishing.
Lemieux, Scott E. and Lovell, George. 2009. “Legislative Defaults: Interbranch Power Sharing and Abortion Politics.” Polity 42(2): 210–43.
Lemieux, Scott E. and Watkins, David J.. 2008. “Beyond the ‘Countermajoritarian Difficulty’: Lessons from Contemporary Democratic Theory.” Polity 41(1): 3062.
Levinson, Sanford. 2002. “Bush v. Gore and the French Revolution: A Tentatove List of Some Early Lessons.” Law & Contemporary Problems 65(3): 739.
Long, Carolyn N. 2000. Religious Freedom and Indian Rights: The Case of Oregon v. Smith. Lawrence: University Press of Kansas.
Lovell, George I. 2003. Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy. Cambridge: Cambridge University Press.
Mayhew, David R. 2004. Congress: The Electoral Connection. 2d ed. New Haven, CT: Yale University Press.
McCloskey, Robert G. 2000. The American Supreme Court. Chicago: University of Chicago Press.
McGirr, Lisa 2015. The War on Alcohol: Prohibition and the Rise of the American State. New York: W.W. Norton.
Meernik, James and Ignagni, Joseph. 1997, “Judicial Review and Coordinate Construction of the Constitution.” American Journal of Political Science 41: 2.
Mouffe, Chantal. 2005. On the Political. London: Routledge.
Murphy, Walter F. 1962. Congress and the Court. Chicago: University of Chicago Press.
Nelson, William E. 2000. Marbury v. Madison: The Origins and Legacy of Judicial Review. Lawrence: University Press of Kansas.
Pickerill, J. Mitchell. 2004. Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System. Durham, NC: Duke University Press.
Posner, Richard A. 2001. Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts. Princeton, NJ: Princeton University Press.
Powe, Lucas. 2000. The Warren Court and American Politics. Cambridge, MA: Belknap.
Powe, Lucas. 2011. The Supreme Court and the American Elite, 1789–2008. Cambridge, MA: Harvard University Press, 2011.
Raskin, Jamin B. 2003. Overruling Democracy: The Supreme Court Vs. the American People. New York: Psychology Press.
Rosen, Jeffrey. 2007. The Most Democratic Branch: How the Courts Serve America. New York: Oxford University Press.
Rosenberg, Gerald N. 2008. The Hollow Hope: Can Courts Bring About Social Change? 2nd ed. Chicago: University of Chicago Press.
Scheppele, Kim Lane. 2001. “When the Law Doesn’t Count: The 2000 Election and the Failure of the Rule of Law.” University of Pennsylvania Law Review 149(5): 1361–437.
Sloan, Cliff and McKean, David. 2010. The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court. New York: PublicAffairs.
Spann, Girardeau. 1994. Race against the Court: The Supreme Court and Minorities in Contemporary America. New York: New York University Press.
Tushnet, Mark. 1994. Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936–1961. New York: Oxford University Press.
Tushnet, Mark. 2000. Taking the Constitution Away from the Courts. Princeton, NJ: Princeton University Press.
Tushnet, Mark. 2003. The New Constitutional Order. Princeton, NJ: Princeton University Press.
Tushnet, Mark. 2006. “The Supreme Court and the National Political Order: Collaboration and Confrontation.” In The Supreme Court and American Political Development, ed. Kahn, Ronald. Lawrence: University of Kansas Press.
Whittington, Keith E. 2007. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. Princeton, NJ: Princeton University Press.
Yates, Jeff and Whitford, Andrew. 2002. “The Presidency and the Supreme Court after Bush v. Gore: Implications for Institutional Legitimacy and Effectiveness.” Stanford Law & Policy Review 13(1): 101–20.
Zeisberg, Mariah. 2013. War Powers: The Politics of Constitutional Authority. Princeton, NJ: Princeton University Press.
Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

Perspectives on Politics
  • ISSN: 1537-5927
  • EISSN: 1541-0986
  • URL: /core/journals/perspectives-on-politics
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 583
Total number of PDF views: 345 *
Loading metrics...

Abstract views

Total abstract views: 849 *
Loading metrics...

* Views captured on Cambridge Core between 18th September 2017 - 20th September 2018. This data will be updated every 24 hours.