Alternatives to Judicial Supremacy & the Entrenched Understanding

RJLipkin at RJLipkin at
Tue Sep 5 04:21:51 PDT 2006

Bob Sheridan writes:
       " It seems that we are left,  in the last analysis, to a sense of 
judgment on the part of fallible humans  appointed to the Court to use the power 
with care." 
        I think this sentiment  derives from an entrenched (subliminal) 
understanding of law, politics, and the  role of the courts in American 
constitutionalism that is deeply embedded in our  political and legal culture and in our 
individual consciousness.  It  creates a fixed framework which appears to be 
necessary.  Without  extirpating this framework or at least identifying it for 
what it is, no  change will be made or even considered.  However, it is not 
necessary and  can be changed.  Unelected, virtually unreachable judges cannot, 
in my  view, be compatible with republican democracy.  Republican democracy is 
not  majoritarianism, to be sure, but it cannot avoid accountability which 
must be  explicated inter alia in terms of consent. Judicial aristocrats or,  
following Ran Hirschl, "juristocrats" cannot, I submit, satisfy the demands  of 
accountability and consent. Similarly, risk aversion (fear of making this  
worse) cannot be the founding creed, and in principle is just as  likely to make 
things worse than tinkering with the system. Finally a slow,  reactive 
constitutional system may promote stability, (and perhaps was  appropriate to the 
founders' circumstances), but it is difficult to appreciate  how it promotes 
justice. No, in the spirit of the founding, let's explore  alternatives in 
institutional design.

Robert Justin Lipkin
Professor of Law
Widener  University School of Law
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