Giving the Constitution to the Courts

Judicial supremacy is the new judicial review. From the time Alexander Bickel introduced the term countermajoritarian difficulty in 1962 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. 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. 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. And Jeremy Waldron suggests that in modern liberal democracies, judicial review is vastly inferior to the legislative process at setting questions of rights