January 9, 2021
What stops executives from brushing aside the pesky rulings of an antagonistic court?
From Menaldo and Webb Williams 2016:
Judicial supremacy…means that the other branches of government will abide by the judiciary’s decision to nullify their acts. The judiciary, whether it take the form of a Supreme or Constitutional Court, is the final interpreter of the constitution. While the executive and legislative branches of government may also be engaged in interpreting the constitution—indeed, their work is usually framed by the constitution’s provisions—they must back down in the face of a judicial veto. That means that their enforcement of any statute or rule has to come to a full stop if the judiciary deems it to be unconstitutional.
Therefore, judicial supremacy implies some form of judicial review. It also seems to imply an independent judiciary—if the judiciary is not truly independent, its judgments might reflect the will of the executive or legislative branch and thus connote executive or parliamentary supremacy working thorough a co-opted judiciary. The example par excellence of judicial supremacy is the U.S. system. For example, in Bush v Gore, the Supreme Court ruled on the constitutionality of a case that had an impact on both the executive and legislative branches. The Supreme Court ultimately awarded the contested presidential election George W. Bush. Al Gore’s political party (the Democrats) held the presidency during this decision; yet, even though the decision cut against its interests, the executive abided by the court’s decision, instead of appealing to the popular will—Gore won the popular vote in 2000.
The great puzzle of judicial supremacy is how and why the other branches of government abide by the judgments of the judicial branch. The legislature has the money, the executive the military might. What stops them from brushing aside the pesky rulings of an antagonistic court?
In the paper, we offer an explanation centered on Federalism and the political balance of power instead of norms such as forbearance:
