New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

Columbia Law Review, Vol. 100, No. 2, 2011

Abstract

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.

Date of Authorship for this Version

9-2011