Aggressive Judicial Review, Political Ideology, and the Rule of Law

Publication Title

Studia Iuridica

Authors

Eric J. Segall, Georgia State University College of LawFollow

Document Type

Article

Publication Date

2019

Abstract

For over one-hundred and fifty years, the United States Supreme Court has been the most powerful judicial body int he worth with life-tenured judges consistently invalidating state and federal laws without clear support in constitutional text or history. This paper focuses on what should be the appropriate role of life-tenured, unelected federal judges in the American system of separation of powers. The tension is between wanting judges to enforce the supreme law of the Constitution while at the same time keeping judges within their assigned roles of enforcing not making the law. Much of constitutional scholarship in the United States is devoted to resolving this tension. This article argues that the Court should take a set back and defer more to elected leaders and voters. Although structural reform might help, most needed changes would require a constitutional amendment and are therefore unlikely to occur. The Justices should take it upon themselves to act with more humility and modesty and only overturn laws where there is strong evidence of clear constitutional error.

Recommended Citation

Eric J. Segall, Aggressive Judicial Review, Political Ideology, and the Rule of Law, 79 Studia Iuridica 68 (2019).

Institutional Repository Citation

Eric J. Segall, Aggressive Judicial Review, Political Ideology, and the Rule of Law, Faculty Publications By Year 2789 (2019)
https://readingroom.law.gsu.edu/faculty_pub/2789

DOI

10.5604/01.3001.0013.1886

Volume

79

First Page

68

Last Page

77