The Ideational Dimension of Judicial Power

Authors

Allen C. Sumrall

Abstract

The judiciary dominates contemporary American politics. In the United States, courts have overcome their humble origins to act as central figures in nearly every major policy dispute and separation of powers dispute. To explain this development, scholars have documented the increase in the federal judiciary’s institutional capacity and resources. Most accounts of the judiciary’s changing role in American constitutional politics focus on the courts’ expanded jurisdiction, the statutes that channel judicial review, the courts’ material resources, or changes to how politicians harness or respond to the judiciary. But focusing on these more formal institutional changes only gets us so far. Namely, it cannot explain how the judiciary can become more powerful absent a formal institutional change, especially in a consistently juristocratic regime marked by judicial supremacy.

One of the most salient stories in American political development is the judiciary’s success in securing bona fide governing authority. One critical piece of the story is the changing role that ideas and norms about courts play in empowering the judiciary within the constitutional system. Ideas, norms, and assumptions about the judiciary’s proper role in the constitutional system supplement the more formal institutional changes that the literature already documents to empower the judiciary. This Article explores the ideational component of American judicial power, which existing literature has not yet appreciated.

Repository Citation

Allen C. Sumrall, The Ideational Dimension of Judicial Power, 109 Marq. L. Rev. 277 (2025).
Available at: https://scholarship.law.marquette.edu/mulr/vol109/iss1/15