The Politics of Judicial Supremacy
The Supreme Court of the United States frequently makes claims of judicial supremacy. These are moments in which the Court claims that its interpretation of the Constitution is the final word, to the possible detriment of other nominally co-equal branches of government. One area of law in which claims of judicial supremacy have become more frequent relates to the doctrine of standing, or questions of whether individuals and groups are proper parties to bring a case. Starting in the 1980s, the Court began to more explicitly link standing to Article III, a process that can be described as "constitutionalization." In this process, the Court works to insulate judicial doctrines from legislative and executive input, making it more difficult (but not impossible) for legislators and presidents to put forth their own visions of what the Constitution requires. Judicial claims of judicial supremacy may be taken at face value -- we can accept these claims, that is, without really questioning what makes such claims possible or successful. In contrast, this paper explores the politics of judicial supremacy, using data on Supreme Court standing decisions as well as an original dataset of Public Laws that confer standing (from 1946-2006). This paper reveals the give and take surrounding judicial claims of supremacy, and links such claims to underlying political and policy goals of justices.
Greenfest, Seth W., "The Politics of Judicial Supremacy" (2013). Forum Lectures. 9.
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