Thursday, July 14, 2016

Whittington on Judicial Review by the US Supreme Court

Keith E. Whittington, Princeton University, Department of Political Science, has posted Sober Second Thoughts: Evaluating the History of Horizontal Judicial Review by the U.S. Supreme Court, which is forthcoming in Constitutional Studies:
Normative theorizing about judicial review often proceeds with minimal attention to the overall record of how the U.S. Supreme Court has actually exercised the power of judicial review. This article assesses how well the historical record of the Court’s invalidation of federal policies can be justified using only a minimalist theory of judicial review. Although some of the Court’s cases can be justified in this way, most of the Court’s work would require a more substantively thick and necessarily controversial theory in order to justify it.

1 comment:

Shag from Brookline said...

This is a great, concise article on judicial review. The text runs just over 11 pages, with few footnotes, followed by a few pages of references. The distinction of horizontal judicial review from vertical judicial review is a reflection of the Constitution's supremacy clause. But the Constitution does not specifically provide for judicial review nor does it provide for judicial supremacy over the horizontal "co-equal" branches. The approach of the author as a political scientist is most welcome. But he does not get into the politics of the Court directly, permitting the reader to read between the lines. Something to think about with the 2016 elections approaching.