By Keith E. Whittington
Should still the excellent courtroom have the ultimate in terms of studying the structure? The justices at the ideal courtroom definitely appear to imagine so—and their critics say that this place threatens democracy. yet Keith Whittington argues that the Court's justices haven't easily seized strength and circumvented politics. The justices have had energy thrust upon them—by politicians, for the advantage of politicians. during this sweeping political historical past of judicial supremacy in the USA, Whittington indicates that presidents and political leaders of all stripes have labored to place the court docket on a pedestal and feature inspired its justices to just accept the function of final interpreters of the Constitution.
Whittington examines why presidents have frequently stumbled on judicial supremacy to be of their most sensible curiosity, why they've got not often assumed accountability for analyzing the structure, and why constitutional management has frequently been handed to the courts. The extraordinary assertiveness of the Rehnquist courtroom in awesome down acts of Congress is just the newest instance of a improvement that started with the founding new release itself. Presidential bids for constitutional management were infrequent, yet mirror the transitority political virtue in doing so. way more frequently, presidents have cooperated in expanding the Court's energy and inspiring its activism. tough the traditional knowledge that judges have usurped democracy, Whittington indicates that judicial supremacy is the manufactured from democratic politics.
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Extra info for Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History
We can easily imagine presidents dismissing the authority of the Court and ignoring its opinions, if not its decisions. We can easily imagine a Court reduced to political subservience, inactive in the exercise of its power of review and incapable of acting independently. But judicial supremacy has grown and become more secure over time. Despite occasional voices of dissent, crucial government ofﬁcials have generally supported the judiciary and recognized its claim to being the ultimate interpreter of constitutional meaning.
When the inherited regime is collapsing under the force of a reconstructive president’s challenge, then the Court is vulnerable. When the regime itself is resilient, however, the Court’s interpretive authority can be a source of strength. When constitutional politics is primarily interpretive rather than creative, the Court can lay claim to a larger space of operations. Even so, the dominant political coalition’s support for judicial authority is contingent. Operating too far outside the framework of regime commitments would put the Court in danger of losing its political support.
Competing terms to describe the phenomenon were being suggested at the same time, including judicial supremacy, judicial veto, and judicial nulliﬁcation. Charles Grove Haines, The American Doctrine of Judicial Supremacy (New York: Macmillan, 1914), 16n2. 3 This was the original context for the term judicial review, as legislatures provided for judicial examination of administrative actions to insure their conformity with the law. , John Den, et al. v. S. 272, 283 (1855); Frank Goodnow, “The Administrative Law of the United States,” Political Science Quarterly 19 (1904): 115; Thomas Reed Powell, “Judicial Review of Administrative Action in Immigration Proceedings,” Harvard Law Review 22 (1908): 360.