Monday, November 7, 2011

Friedman & Delaney: "Becoming Supreme"

Many readers may find "Becoming Supreme: The Federal Foundation of Judicial Supremacy," by Barry Friedman (NYU-Law) & Erin Delaney (Columbia--Law Fellow) of interest. The abstract of the article, recently published in Columbia L. Rev. (Oct. 2011), follows; the full article is available here.

One of the longstanding questions that bedevils scholars in several disciplines is how judicial power gains traction. What, in particular, explains judicial supremacy? Theories abound, but each is lacking in some way. By looking at the answer to this question in the context of the Supreme Court of the United States, we demonstrate the vital role a federal system can play in both the rise and maintenance of judicial supremacy. In a unitary (nonfederal) system, a judiciary possessing the power of judicial review may well find itself frequently at odds with—and rarely helpful to—the governing regime. In contrast, in a federal system, the judiciary can provide vital support to the central government in suppressing outlier conduct. This “vertical” supremacy—the supremacy of the Supreme Court over state and local governments—ultimately transforms itself into “horizontal” supremacy—the binding effect of judicial pronouncements over the coordinate branches of the national government. This project is theoretical and historical both: It identifies the mechanisms for the transformation from vertical to horizontal supremacy, and recounts how this occurred in the United States.