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Reconsidering Judicial Supremacy: From the Counter-Majoritarian Difficulty to Constitutional Transformations

The counter-majoritarian difficulty has for many years framed constitutional scholarship for both law professors and political scientists studying judicial review. Unfortunately, shared attention has not led to shared insights, as these scholars have remained isolated in their respective academies. Recently scholars have begun targeting this disciplinary barrier, and questioning whether developing norms of judicial supremacy have importantly raised the stakes of determining the legitimacy of courts setting policy in a democracy. This article proposes a new approach to the study of judicial review aimed at understanding systemic change rather than institutional legitimacy, using recent concerns over the drift from judicial review to judicial supremacy as a point of departure for study. I recommend, to both normative and positive scholars, a new and integrated focus on the relationship between judicial policymaking and wider transformations of the constitutional order that have previously been obscured by orienting constitutional scholarship around the counter-majoritarian difficulty.Allison M. Martens is: Assistant Professor of Political Science, University of Louisville (allison.martens@louisville.edu). She thanks Jeffrey Tulis, James Johnson and three anonymous referees for their helpful comments and suggestions