The Download of the Week is Inferiorizing Judicial Review: Popular Constitutionalism in Trial Courts by Ori Aronson. Here is the abstract:
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The ongoing debates over the legitimacy of judicial review as well as
the evolving school of thought called ‘popular constitutionalism,’ are
characterized by a preoccupation with the Supreme Court as the
embodiment of judicial power. This is a striking shortcoming in
prevailing constitutional theory, given the fact that in the U.S.,
inferior courts engage in constitutional adjudication and in acts of
judicial review on a daily basis, in ways that are importantly
different from the familiar practices of the Supreme Court. The article
breaks down this monolithic concept of ‘the courts’ by shifting the
focus to the lower levels of the judicial system. Trial court
adjudication is revealed to hold a unique transformative potential for
constitutionalism: the possible enhancement of civic participation,
public deliberation, and value pluralism in the process of creating
constitutional meanings.
The article presents an argument for ‘inferiorizing’ judicial review,
i.e., relegating the power of judicial review to the federal district
courts, and removing the Supreme Court from this practice. The
‘inferiorizing’ model – a procedurally simple, though conceptually
radical, jurisdictional shift – is shown to have a redeeming potential
for judicial review as a democratically legitimate means of enforcing
constitutional rights; while at the same time providing a robust
institutional setting for the exercise of popular constitutionalism.
Although it would be very difficult to bring about a full inferiorizing
shift in constitutional adjudication, the article exposes the
possibilities for democracy-enhancing institutional innovation; these
possibilities become available to constitutional actors once the
institutional diversity of courts is recognized.
A very interesting paper!