Soft Supremacy

The debate over judicial supremacy has raged for more than a decade now, yet the conception of what it is we are arguing about remains grossly oversimplified and formalistic. My aim in this symposium contribution is to push the conversation in a more realistic direction; I want those who claim that judicial supremacy is antidemocratic to take on the concept as it actually exists. The stark truth is that judicial supremacy has remarkably little of the strength and hard edges that dominate the discourse in judicial supremacy debates. It is porous, contingent—soft.

And the upshot of soft supremacy is this: we do not need popular constitutionalism, departmentalism, or any other theory de jour to put the people back in the Constitution. In numerous and substantial ways, they are already there.