Introduction

Judicial departmentalism is the view that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. It is a legally superior alternative to judicial supremacy, which is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case.1

The perspective of judicial departmentalism provides a useful way to think about originalist law reform. By insisting on the real legal boundaries around the legal authoritativeness of Supreme Court determinations, judicial departmentalism clears the way to understanding how the constitutional law developed by the Supreme Court can differ from what the law of the Constitution really is at any particular time. Judicial departmentalism provides a way of thinking about how the original law of the Constitution is still the law unless lawfully changed even while divergent constitutional law applied in the judicial department is also the law.2

When the constitutional law applied in the judicial department diverges from the law of the Constitution, it displaces that law in the judicial department. But the displacement is only partial. The persistence of the law of the Constitution explains how there remain legal standards that are legally valid independent of the judicial department’s say-so but also fully inside the law for their potential application. This persistence justifies the originalist law reform that happens, for example, when the Supreme Court replaces nonoriginalist precedent with something more faithful to the law of the Constitution.3

Drawing on examples from Justice Antonin Scalia’s jurisprudence, this Essay uses the perspective of judicial departmentalism to examine the nature and limits of two partially successful originalist law reforms in recent years. It then shifts to an examination of how a faulty conception of judicial supremacy drove a few nonoriginalist changes in the law that Scalia pro­perly dissented from. Despite the mistaken judicial supremacy motivating these decisions, a closer look reveals them to be backhanded tributes to judicial departmentalism because of the way that the Court had to change jurisdictional and remedial doctrines to accomplish its substantive-law alterations. The Essay closes with a discussion of the somewhat surprising poten­tial that § 5 of the Fourteenth Amendment offers for originalist law reform when situated within a framework of judicial depart­mentalism. Originalism provides both a foundation for understanding the breadth of Congress’s enforcement power under § 5 and also a means of grounding enforcement legislation other than existing judicial doctrine. The combination of judicial departmentalism and originalism can be particularly potent for generating originalist law reform in areas in which existing judicial doctrine underenforces substantive Fourteenth Amendment protections when measured against the original law of the Fourteenth Amendment.

  • 1. See generally Kevin C. Walsh, Judicial Departmentalism: An Introduction, 58 Wm & Mary L Rev 1713 (2017).
  • 2. See id at 1733–34.
  • 3. See id at 1730.

Tags