Abstract

This essay develops an institutional perspective to consider limitations on judicial authority. Rather than assume that judicial decisions put an end to disagreements about what the Constitution means, this perspective focuses on the political contests that occur after judges make disputed interpretations of constitutional law. This perspective shows that scholars both exaggerate the role of judicial review in enforcing constitutional limits and underestimate the political instability that follows from difficulty in challenging controversial judicial holdings. Together, these claims are the beginning of an argument defending a form of legislative supremacy that would allow Congress and the President to override judicial precedents through ordinary legislation, after which judges would be bound to apply that legislative interpretation of constitutional law.

Keywords

Legislature, Supremacy, Judicial, Review, Courts, Congress, President, Politics, Institution, decisionmaking, decision making, common law, constitutional law