Is the United States a Regime of Judicial Supremacy? Political Empowerment of the Judiciary and the Finality of Constiutional Rulings

It is widely assumed that the Supreme Court of the United States has established supremacy over contested constitutional questions, with the power to make final determinations of constitutional meaning. Since the 1960s, most scholars have assumed that legislatures and courts are engaged in a power struggle in which countermajoritarian courts can assert their will over majoritarian legislatures -- this is often seen as a troubling but logical development. More recently, a new generation of scholarship has demonstrated that judicial power often expands as a the result of willful empowerment of the judiciary by actors in other branches. Most scholars working with the latter framework, however, do not dispute that the United States is living in a regime of judicial supremacy -- they simply see the political empowerment of courts as an explanation for why judicial supremacy has emerged despite the initially weak position of the judiciary. We argue that the insights of the political empowerment literature should be pressed further. We argue that, in fact, it makes little sense to use the general label 'judicial supremacy' for a system in which judicial power remains dependent on choices made by outside actors, and thus fragile. The logic of new empirical findings about the sources of judicial power should compel scholars to question whether aggressive assertions of supremacy in judicial opinions are in fact accurate descriptions of judicial authority