Allen Sumrall (Law School & Government Department, Unversity of Texas at Austin) & Beau J. Baumann (Yale Law School) have posted Clarifying Judicial Aggrandizement (University of Pennsylvania Law Review Online) on SSRN. Here is the abstract:
Scholars argue that the Roberts Court has been engaged in a judicial “power grab.” Some scholars describe the Court as “juristocratic,” others “aggrandizing.” The Court’s supporters argue that these critics’ charges only thinly veil the critics’ policy differences with the Court. Is the Roberts Court’s power materially different from other Courts that preceded it? If the charge is about “judicial activism,” do the critics hold the Warren Court to the same standard?
Scholarship about the Roberts Court has encountered a long-running difficulty; “judicial power” is an amorphous braid of norms, ideas, and institutional arrangements. We advance a taxonomy for understanding the different aspects of contemporary judicial power by untangling several concepts: judicial supremacy, juristocracy, judicial activism, and judicial self-aggrandizement. Of these criterion, the Roberts Court’s exceptional feature is its judicial self-aggrandizement, where it deploys demeaning rhetoric about other constitutional actors and invokes ideas about its own importance to justify the centralization of power in the judiciary.
This piece does important work by clarifying the relationship between the related and distinction notions of judicial supremacy, juristocracy, judicial activism, and judicial self-aggrandizement. Here are snippets from the relevant passages:
Judicial Supremacy: "Judicial supremacy describes an arrangement where the judiciary has the final say on the meaning of constitutional text. In practice, the condition of judicial supremacy in the United States means that the Supreme Court determines what the Constitution means.
Juristocracy: "Juristocracy describes a particular governing regime in which other political actors defer to courts to decide policy questions that otherwise would have belonged to a legislature or an executive. Although the term was used as early as 1923, Ran Hirschl famously elevated juristocracy to describe a global trend in the late-20th and early-21st century where 'constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries.'"
Judicial Activism: "A more academically rigorous idea of judicial activism associates the concept with epistemic recklessness. Its starts from the premise that legal holdings require claims about what the law requires. Lawyers, judges, and legal scholars need to make claims about what we know about what the law requires to parse legal claims. On this version of judicial activism focused on epistemics, a judge engages in judicial activism by ignoring relevant evidence of constitutional meaning."
Judicial Self Aggrandizement: "Judicial aggrandizement is the successful deployment of ideas and norms that reinforce the judiciary’s role as the final arbiter of political disputes at the expense of other governing institutions.88 Judicial self- aggrandizement refers to when jurists, rather than other actors, deploy the same rhetoric. The deployment must be successful because, were the ideas not successfully adopted, the rhetoric would not contribute to aggrandizement."
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