Becoming Supreme: How Federalism Fosters Judicial Power

Barry Friedman
New York University Law School

One of the longstanding, beguiling questions among scholars in several disciplines is how judicial power gains traction. Why do those setting up governments create an independent judiciary, why or how does judicial review get a foothold, and most important, what is the fount of judiciall supremacy? Theories abound, each problematic in some way. By looking at the answer to this question in the context of the Supreme Court of the United States, we demonstrate the vital role a federal system can play in both the rise and maintenance of judicial supremacy. In a unitary (non-federal) system, a judiciary possessing the power of judicial review necessarily will find itself frequently at odds with – and rarely helpful to – the governing regime. By contrast, in a federal system, the judiciary can provide vital support to the central government in suppressing outlier conduct. We describe the process by which this central insight accounts initially for “vertical” supremacy, the supremacy of the Supreme Court over state and local governments and ultimately transforms itself into “horizontal” supremacy the binding effect of judicial pronouncements over the coordinate branches of the national government. This project is theoretical and historical both: it identifies the mechanisms for the transformation from vertical to horizontal supremacy, and recounts how this occurred in the United States. While the historical detail is unique to the United States, the model has the potential to explain the rise and maintenance of judicial supremacy in many countries across the globe.

Professor Friedman is one of the country’s leading authorities on constitutional law and the federal courts. He is a prolific scholar, working at the intersections of law, politics and history. Friedman teaches a wide variety of courses including Constitutional Law, Federal Courts, and Criminal Procedure. He writes extensively about judicial review, constitutional law and theory, federal jurisdiction and judicial behavior. His scholarship appears regularly in the nation’s top law and peer-edited reviews. He is the author of widely-recognized The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (Farrar, Strauss & Giroux, 2009), which examines the history of the relationship between popular opinion and the Supreme Court, from 1776 to the present. Along with his co-author Stephen Burbank, Friedman co-edited and contributed to Judicial Independence at the Crossroads: An Interdisciplinary Approach, which questions common assumptions about the nature of judicial independence and how it can be protected. The book has been cited and relied upon countless times by scholars and policymakers alike. Professor Friedman is a frequent contributor to the nation’s leading journals, both on-line and print. His work has appeared in The New York Times, Salon, The Los Angeles Times, Politico and The New Republic, among others. Professor Friedman graduated from the University of Chicago and received his law degree magna cum laude from Georgetown University Law Center. He clerked for the Honorable Phyllis A. Kravitch of the U.S. Court of Appeals for the 11th Circuit and also worked as a litigation associate at Davis, Polk & Wardwell in Washington D.C. He was a professor at Vanderbilt Law School before joining the NYU faculty in 2000. In 1995 he won the Clarence Darrow Award from the ACLU of Tennessee for his work in defense of civil liberties.

A light lunch will be served