Faculty Journal Articles and Book Chapters


This essay examines judicial supremacy and some of its discontents, old and new. Part I surveys the curiously quiet posture of the public and their representatives today on the issue of judicial supremacy. Part II contrasts this quiet with other eras when neither the people nor their representatives willingly accepted judicial supremacy. Part III considers the views of two important contemporary critics of judicial supremacy who write from very different constitutional and political perspectives.

Michael Paulsen argues that the President, as head of the coordinate and equal executive branch of the national government, has the power to interpret the Constitution for himself, is not obliged to adopt the Court's interpretation of the Constitution, and may even refuse to execute orders from the Court.

Professor Larry Kramer argues that the Rehnquist Court has transformed judicial supremacy into "judicial sovereignty," threatening to erase the idea of "popular constitutionalism" under which the people themselves are ultimately responsible for interpreting and implementing their Constitution.

The author will make the negative case that these critiques of judicial supremacy miss the mark. His argument, especially as it relates to Paulsen's thesis, rests on the admittedly contestable premise that advocates for changing longstanding practices bear the burden of persuasion for changing them.

Publication Title

Constitutional Commentary

Document Type



judicial supremacy, Constitution, Supreme Court



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.