Academic journal article William and Mary Law Review

Judicial Departmentalism: An Introduction

Academic journal article William and Mary Law Review

Judicial Departmentalism: An Introduction

Article excerpt

ABSTRACT

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these three bodies of law provide the exclusive ways in which constitutional adjudication gives rise directly to binding constitutional law. This Article argues that our Justices should be judicial departmentalists rather than judicial supremacists.

Table of Contents

INTRODUCTION
I.  THE CASE FOR JUDICIAL SUPREMACY: A SKETCH
    A. "Judicial Supremacy Is the Law"
    B. The Settlement Function of Law
    C. The Collapse Argument Against Departmentalism
II. THE LEGAL FOUNDATIONS OF JUDICIAL
    Departmentalism
    A. Jurisdiction, the Law of Remedies, and the
       Law of Judgments
    B. The Law of Precedent
    C. Putting the Pieces Together
III. WHY AND HOW JUDICIAL DEPARTMENTALISM MATTERS
    A. Adjudication, Equilibration, and Implementation
    B. The Benefits of Self-Aware Judicial Departmentalism.
       1. Judicial Audience and the Dual Nature of
          Supreme Court Opinions
       2. Bounded Legal Settlement
       3. Collapse into What?
    C. Revisiting Standard Supremacy Doctrine
CONCLUSION

INTRODUCTION

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. It contends that our Justices should be judicial departmentalists rather than judicial supremacists.

Judicial supremacy is the conventional designation for the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. (1) Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. (2)

Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. (3) To the extent that these judicial settlements remain undisturbed over time, judicial departmentalism enables a type of judicial supremacy to function as a practical matter. But this supremacy is legally limited by the boundaries around judicial resolutions imposed by the law of judgments, the law of remedies, and the law of precedent. (4) Judgments are generally limited to parties, injunctions can be lifted, and precedents can be overturned, for example. (5)

Judicial departmentalism has not previously been presented as a conceptual framework for thinking about the authoritativeness of judicial determinations of constitutional law. But this Article argues that it already is our law, and that the conventional view that judicial supremacy is our law rests on much weaker foundations than commonly thought.

Part I quickly sets the stage for comparing judicial supremacy and judicial departmentalism. It does so through an overview of the better known of the two ideas: judicial supremacy. It first presents the conventional doctrinal account of judicial supremacy's place in today's constitutional law. It then sketches the two most prominent normative arguments marshaled in support of the comparative superiority of judicial supremacy. These are the settlement-function argument for judicial supremacy (6) and the collapse argument from the instability of alternatives. (7) The exposition in Part I operates externally. It describes how nonjudicial officials are told they should regard the authoritativeness of Supreme Court determinations of constitutional law if they are judicial supremacists:

as equivalent in authority to the Constitution itself. …

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