"An Indispensable Feature"? Constitutionalism and Judicial Review

In Cooper v. Aaron,1 an opinion drafted by Justice William Brennan and delivered by Chief Justice Earl Warren for a unanimous Court,2 the Supreme Court provided an influential gloss on Marbury v. Madison and its declaration of the power of judicial review.3 Marbury, the Court asserted in Cooper, declared the “basic constitutional proposition” that “the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the country as a permanent and indispensable feature of our constitutional system.”4 In many ways, of course, it is true that judicial review, and the kind of judicial supremacy the Court articulated in Cooper, has been understood as an indispensable feature of the American constitutional system. One of the useful things about Jeremy Waldron’s book Law and Disagreement5 is that it provides a basic challenge to this idea. Waldron asks whether judicial review is a unique and idiosyncratic aspect of the American constitutional system, one that is dispensable to constitutionalism more broadly; and whether it would be possible to have a constitutional system that did not include judicial review. This is an interesting and an important question, one that is not ordinarily given enough attention.6