Judicial supremacy is the new judicial review. From the time Alexander Bickel introduced the term "countermajoritarian difficulty" in 19621 until very recently, justifying judicial authority to strike down legislation in a nation committed to democratic self-government was the central problem of constitutional theory. But many who had satisfied themselves as to the legitimacy of judicial review have since taken up the related but distinct question of whether, though legitimate, constitutional interpretation should be the exclusive province of the judiciary. That is, is it ever appropriate to locate constitutional interpretive authority outside of constitutional courts, whether within the coordinate branches of government or the citizenry more generally?
Recent attacks on judicial supremacy, mostly from the academic left, have sought to debunk the strongest form of the proposition that the Constitution means whatever the Supreme Court says it means. Thus, Larry Kramer traces the history of popular constitutionalism as a bulwark against the robust vision of judicial supremacy advanced by the Warren Court in cases like Cooper v. Aaron.2 Reva Siegel and Robert Post denounce the "juricentricity" of the Rehnquist Court, which they say should have been more attentive to the contributions of political culture to constitutional meaning.3 Mark Tushnet argues provocatively that citizens and public officials should disregard Supreme Court constitutional pronouncements that conflict with their reasonable conceptions of what he calls the "thin" Constitution.4 And Jeremy Waldron suggests that in modern liberal democracies, judicial review is vastly inferior to the legislative process at setting questions of rights.5
There is an irony in all this rending of tunics over judicial power. Popular constitutionalists believe that the people themselves should play an active role in constitutional elaboration. But the place of federal judges within our system is itself of constitutional dimension. Our federal judges are creatures of the Constitution, their duties mandated in the rather bare terms of Article III and the scope of their power answerable to the people in their exercise of higher lawmaking. Settling the role of the federal judiciary vis-a-vis other political institutions is a matter of what Keith Whittington has called "constitutional construction," the ongoing creation of the Constitution's meaning through "the political melding of the document with external interests and principles."6 Constitutional construction is sympathetic with the popular turn in constitutional theory, describing as it does the process by which constitutional ambiguity is resolved outside the courts by nonjudicial actors.
Giving the Constitution to the Courts,
Yale L. J
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/262