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04/09/2018

Nelson Lund Reviews Martin Redish on Judicial Supremacy
Michael Ramsey

Nelson Lund (George Mason University School of Law) has posted Judicial Supremacy: Palladium of Liberty or Academic Paradox? (33 Constitutional Commentary 101 (2018)) on SSRN.  Here is the abstract:

Martin H. Redish, a distinguished federal courts and constitutional law scholar, has written a remarkable book-length defense of judicial supremacy. Alarmed by the work of academics whom he sees as dangerously loose cannons—including Bruce Ackerman, Larry Kramer, and Michael Stokes Paulsen—Redish seeks to reestablish a “formalist traditional model” that takes the written Constitution seriously. This model, which is emphatically not originalism, treats the “prophylactically insulated judiciary [as] the beating heart of the structural brilliance that defines American constitutionalism.”

After defending his claim that the Supreme Court rightly enjoys supremacy in the interpretation of the written Constitution, Redish draws a number of novel inferences about its implications. Unlike the President and other executive officials, for example, judges may be impeached only for criminal behavior, and then only if the conduct threatens the integrity of the judicial role. The Constitution requires that state judges be granted life tenure. The judiciary has the constitutional power and obligation to assure that Congress does not deceive the electorate as to the manner in which its legislation alters the preexisting legal, political, social, or economic topography. The Fifth Amendment repealed the Suspension of Habeas Clause in Article I.

Even if one doubts that the Supreme Court should or ever will accept the arguments Redish makes, readers of his book will be forced confront proposals that they surely would not have conjured on their own.

The lengthy review, principally from an originalist perspective, is a bit harsher than the abstract indicates.

Professor Redish's book is Judicial Independence and the American Constitution: A Democratic Paradox (Stanford University Press, 2017).  Here is the book description from Amazon: 

The Framers of the American Constitution took special pains to ensure that the governing principles of the republic were insulated from the reach of simple majorities. Only super-majoritarian amendments could modify these fundamental constitutional dictates. The Framers established a judicial branch shielded from direct majoritarian political accountability to protect and enforce these constitutional limits. Paradoxically, only a counter-majoritarian judicial branch could ensure the continued vitality of our representational form of government. This important lesson of the paradox of American democracy has been challenged and often ignored by office holders and legal scholars. Judicial Independence and the American Constitution provocatively defends the centrality of these special protections of judicial independence. Martin H. Redish explains how the nation's system of counter-majoritarian constitutionalism cannot survive absent the vesting of final powers of constitutional interpretation and enforcement in the one branch of government expressly protected by the Constitution from direct political accountability: the judicial branch. He uncovers how the current framework of American constitutional law has been unwisely allowed to threaten or undermine these core precepts of judicial independence.