Judicial Supremacy Revisited: Independent Constitutional Authority in American Constitutional Law and Practice

The Supreme Court exercises far less constitutional authority in American law and practice than one would gather from reading judicial opinions, presidential speeches, or the standard tomes for and against judicial supremacy. Lower federal court judges, state court justices, federal and state elected officials, persons charged with administering the law, and ordinary citizens often have the final say on particular constitutional controversies or exercise temporary constitutional authority in ways that have more influence on the parties to that controversy than the eventual Supreme Court decision. In many instances, Supreme Court doctrine sanctions or facilitates the exercise of independent constitutional authority by persons other than Supreme Court Justices. Inflated claims about the role of the Supreme Court in American constitutional politics ignore significant institutional, legal, and political constraints on judicial power, conflate the judicial power to have the final say over the meaning of constitutional provisions with the judicial power to settle constitutional controversies at particular times and places, and confuse independent constitutional authority with nullification.