The rule of law and the role of courts

Abstract What role do courts play in advancing or upholding the political ideal that we call ‘the rule of law’? Does the rule of law require that courts should have authority over all other branches of government, including the legislature? And does it impose constraints on the sort of reasoning and decision-making that courts engage in? This article explores an array of possible answers to these questions, and considers the possibility that the ascendancy of courts in a constitution may represent a form of judicial supremacy that looks remarkably like the uncontrolled rule of men, which the rule of law is supposed to prevent. To preclude that possibility, it is particularly important for courts to recognize that their authority is limited in scope and that they should not be guided by any overall political program other than the program of seeing that constitutional constraints on government are upheld.