The Political Foundations of Judicial Supremacy
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Many have looked at the Court's formal powers and historical track record and concluded that the judiciary lacks the means to act independently. Such pessimistic conclusions need to be challenged on two fronts. First, we need to question the normative starting point, that judicial supremacy is really essential to the maintenance of constitutionalism. If other institutions and political actors in addition to judges take the Constitution seriously, then the constitutional order itself might not be threatened by periodic challenges to the judicial authority to interpret the Constitution. Second, we need to reconsider the political roots of judicial independence. In this chapter I consider some of the political incentives facing American presidents and how they often lead presidents to value judicial independence and seek to bolster, or at least refrain from undermining, judicial authority over constitutional meaning. The president has the formal tools to defeat the Court. The interesting question is whether he has the will or political support needed to successfully challenge the Court for constitutional leadership. Generally, he does not, creating a politically sustainable place for autonomous judicial action.