Cato Supreme Court Review: 2007-2008

By Robert A. Levy; Ilya Shapiro et al. | Go to book overview

Judicial Supremacy and Federalism:
A Closer Look at Danforth and Moore

Edward J. Loya Jr.*


I. Introduction

Following the close of the Supreme Court's most recent term, Seattle University law professor Andrew Siegel wrote:

To a degree that current political and judicial rhetoric masks,
all of the current Justices share a conception of the judicial
role that gives Courts the right and the obligation to indepen-
dently assess the meaning of ambiguous constitutional rights
guarantees and then follow their own best judgment, letting
the chips fall where they may. The Justices have differed
in their vision of the society that the Constitution's rights
provisions are designed to protect, not on their vision of the
judicial role.1

Siegel went on to suggest that this shared vision of the Court's role will eventually show that “the gap between the reality of constitutional law (in which two groups of judges committed to a broad judicial role battle over the substance of the rights to be jealously protected) and the rhetoric of constitutional politics (in which liberal 'activists' battle conservatives committed to 'judicial restraint') has grown untenable.”2 These observations may sound like high-minded academic talk to be appreciated only by tenured professors, but they accurately describe a fundamental (and very real) shift in the Court's understanding of its constitutional role.

*At the time this Review goes to press, I am due to assume a new position as a
trial attorney in the Criminal Division at the U.S. Department of Justice. I would like
to thank Andrew Coan for his comments on a later draft. All views expressed herein
should be attributed to me alone.

1 A Shared Vision of the Judicial Role, ProfsBlawg, http://prawfsblawg.blogs.com,
(June 26, 2008, 2:28 p.m.).

2Id.

-161-

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