How Constitutional Law Casebooks Perpetuate the Myth of Judicial Supremacy (original) (raw)

Popular Constitutionalism, Departmentalism, and Judicial Supremacy

California Law Review, 2004

It is a pleasure and a privilege to comment on Larry Kramer's 2002 Jorde Lecture. Beautifully crafted, deeply erudite, sharply original, and resonant with passionate conviction, the Lecture addresses a topic of growing significance to contemporary constitutional thought. Together with the book from which it is drawn, 1 the Lecture will no doubt prove a major contribution to our understanding of American constitutional history. Time spent reflecting on Kramer's project is time well spent. Kramer argues for "popular constitutionalism," by which he means a system in which the people assume "active and ongoing control over the interpretation and enforcement of constitutional law." 2 Kramer identifies the enemy of popular constitutionalism as "judicial supremacy," by which he means "the notion that judges have the last word when it comes to constitutional interpretation and that their decisions determine the meaning of the Constitution for everyone." 3 Kramer argues for a world in which courts

Book Review of The Supreme Court and Constitutional Democracy

1986

The judicial branch is the clear focus of constitutional decisionmaking; national debate regarding abortion, busing, school prayer, and the rights of the criminally accused generally fastens on the Supreme Court's decisions. Concerned that "[t]oday citizens, members of Congress and presidents alike look to the courts for all constitutional deliberation -that is, for all decisions involving the deepest questions of national direction," 1 John Agresto emphasizes the need for the executive and Congress to check the judiciary and to develop constitutional law by interpreting the Constitution independently. Agresta's work, The Supreme Court and Constitutional Democracy, offers a new perspective on the ongoing debate over constitutional interpretation and the role of the Supreme Court in American government.

Missing the Wood for the Trees: The Unseen Crisis in the Supreme Court

2013

It is a widely acknowledged reality that the Supreme Court today faces a crisis in the form of a severely over-burdened docket. This paper argues that, while the existence of the problem is well known, its genesis, underlying causes and broader impact are significantly misunderstood. It is in that sense that the crisis remains an unseen one. A core claim of the paper is that the burden on the Court is neither a historical inevitability nor primarily a resource-centric problem. Rather, it is the product of conscious choices made over a period of time by judges of the Court, choices which were shaped and constrained in significant ways by other important factors, but which nonetheless remained conscious choices. This trend is deeply troubling for many reasons, and calls for an urgent exploration of possible models for reform.