Academic

Lipkin on Judicial Supremacy & Judicial Review

By Lawrence Solum

Robert Justin Lipkin (Widener University School of Law) has posted What's Wrong with Judicial Supremacy? What's Right About Judicial Review? (Widener Law Review, Vol. 14, No. 1, 2008) on SSRN.  Here is the abstract:

Skepticism concerning the legitimacy of judicial review typically occurs without distinguishing between judicial review and judicial supremacy. The former gives the Court a say in evaluating the constitutionality of legislation and other government conduct. The latter gives the Court the final say over these matters. This Article defends the Court's role in judicial review but rejects the practice of judicial supremacy. The Article first critically examines some of the more important attempts to justify judicial supremacy and finds them wanting. It then explains why judicial review, as the practice of applying American political philosophical concepts such as federalism, the separation of powers, liberty, and equality to concrete contexts, is the appropriate role for courts in a republican democracy. To value judicial review as applied political philosophy does not commit one to judicial supremacy. Indeed, judicial review is valuable even if other branches of government or the people themselves have the final word in determining the constitutionality of legislation. Self-government thrives when it includes judicial review. By contrast it tends to founder when it replaces judicial review with judicial supremacy.

And from the paper:

?C?mon, as any first year law student knows constitutional law is extremely complex and it is simply quixotic to think that it is within the ken of ordinary citizens to make such a citizen?s Constitution work.  In constitutional law, we need specialists to explain the Constitution to the masses.? Alternatively stated, democracy is a good thing, but too much democracy is not.

How can such a view represent the conventional wisdom of a republican democracy?  What has become of the idea of self-government?  Just what kind of polity does the Constitution create?  If constitutional review must be limited to specialists independently of ordinary citizens and constitutional law constitutes higher law, then whatever else higher law creates, it does not create a republican democracy.  If the electorate should be responsible for constitutional law only through Article V, then the constitutional operations of government virtually excludes the people.  Let me put this point in the following manner: since the United States has de facto created a system where unelected Justices are given the ultimate or penultimate authority to interpret the Constitution, ordinary citizens can only have a rather attenuated role in this process, if they have any role at all. 

Underlying this claim about constitutional expertise lies a darker conviction about the ordinary citizen?s role in republican democracy.  The conviction is that ordinary citizens are simply unable to govern in complex contemporary political society.51  Specifically, ordinary citizens have little capacity to distinguish between their own individual short-term and long-term interests. Ordinary citizens are typically unsophisticated, with little understanding of the distinction between self-interest and the common good.  Yet, when they do understand the distinction, their loyalty lies with their self-interest, not with the common good.  Ordinary citizens are easily manipulated by power-seeking politicians, special interest groups, and especially the media.  In effect, ordinary citizens are stupid, greedy, and the source of evil, or more gingerly stated, the source of mismanagement in government.  And even when none of these qualities apply to an individual, he or she has little ability or inclination to try to appreciate an opponent?s point of view, let alone attempt to struggle to reach consensus or compromise.  Consequently, republican democracy should be re-conceptualized so that its public face glorifies self-government.  But in reality, government officials, special interest groups, religious activists?in short, different types of governing elites?do the heavy lifting concerning the actual operations of ?self-government.?

Recommended.

Full post as published by Legal Theory Blog on December 09, 2008 (boomark / email).