Bench Memos

Law & the Courts

Are Limited Versions of Judicial Supremacy Coherent?

Various folks contend that they subscribe to some of the tenets of judicial supremacy, but not the full-fledged version that I describe. But the challenge for them is whether there is any principled basis for drawing the line where they do.

As readers ponder Mike Paulsen’s four answers—1, 2, 3, and 4—to his questions on judicial supremacy, I would like to highlight this passage from his opening exam question:

Genuinely “co-equal” interpretive authority and “judicial supremacy” (to any degree) are fundamentally inconsistent with one another.  If the judgments of the judiciary are supreme and binding on everyone else, and if the judiciary is likewise supreme in deciding the scope and content of such judgments and their own jurisdiction and authority to enter them, then there is no genuine sphere of independent interpretive authority in the other branches. 

Any asserted such sphere of “independent” interpretive authority by others is illusory, and exists solely as a matter of judicial grace.   The power to render judgments that bind the actions of other branches swallows up any pretense of co-equal interpretive power.  (It also renders any claim that such a judicial power is itself merely a “co-equal” interpretive power a complete misnomer.  As Orwell might have put it: all branches possess co-equal interpretive power, but the judiciary’s co-equal interpretive power is more co-equal than everybody else’s.)

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

Most Popular

Elections

The Odds Are Slim to Nunes

When the history of the 2018 midterms is written, there will be a chapter on missed opportunities for Democrats. Some may wonder if they should have spent so much money supporting Beto O’Rourke in Texas, or whether Heidi Heitkamp was doomed from the start in North Dakota. One painful question for progressives ... Read More
Politics & Policy

The Beatification of Beto

The media’s treatment of Texas Democratic candidate Beto O’Rourke wasn’t the most egregiously unfair coverage of the past year -- that would be the treatment of Brett Kavanaugh -- but it ranks among 2018’s most annoying. The endless glowing profiles of O’Rourke in every publication from Vanity Fair to ... Read More