About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

92 Tul. L. Rev. 393 (2017-2018)

handle is hein.journals/tulr92 and id is 425 raw text is: Judicial Supremacy in Comparative Constitutional Law Manoj Mate* This Article challenges the prevailing conception ofjudicial supremacy in comparative constitutional law as informed by US. and Western models of constitutionalism and argues for reconceptualizing judicial supremacy in a way that captures the broader range of institutional roles courts play globally. Drawing on insights from global constitutional systems, this Article argues for and develops an institutional conception ofjudicial supremacy that focuses on three key institutional roles played by courts globally: constitutional guardianship, institutional guardianship, and governance optimization. It then provides a dynamic account of the emergence of expansive judicial supremacy in India through a study of the Indian Supreme Court's assertion of these institutional roles. The Article seeks to uncover the institutional conception ofjudicial supremacy and its global applicability by comparatively analyzing the institutional roles asserted by courts in India, Germany, Turkey, Colombia, and South Africa. It concludes by suggesting that India represents an expansive model of judicial supremacy that poses challenges for regime politics, theories ofjudicial power, and constitutionalism by illustrating how courts themselves can redefine constitutional norms, consolidate institutional control over the judiciary, and restructure governance. Reconceptualizing judicial supremacy based on courts' institutional roles has implications for the comparative study of public law and courts and normative implications in terms of understanding the broad and varied role courts can play in protecting and stabilizing constitutionalism. I. INTRODUCTION.......................................395 II. CONCEPTUALIZING JUDICIAL SUPREMACY ................399 A. Judicial Supremacy and Constitutional Interpretation ............................400 B. Judicial Supremacy as a Global Model of Constitutionalism .................... .....402 C. Toward an Institutional Conception ofJudicial Supremacy ......................... .....404 1. Constitutional Guardianship......... ...........408 2. Institutional Guardianship .................410 3. Courts as Governance Optimizers ....... .......411 III. CONSTRUCTING JUDICIAL SUPREMACY IN INDIA ...... ......412 * 0 2017 Manoj Mate. Visiting Scholar, East Asian Legal Studies, Harvard Law School (2017-2018); BA, M.A., Ph.D., U.C. Berkeley, J.D. Harvard Law School. I thank William Aceves, Tendayi Achiume, Erez Aloni, Deepa Badrinarayana, Stewart Chang, Hannah Gerry, Sheldon Lyke, Wayne Sandholtz, Gregory Shaffer, Chris Whytock, Seval Yildirim, participants of the 2017 Southern California International Law Scholars' Workshop at USC Gould School of Law (February 2017), and participants at a faculty workshop at Whittier Law School for comments and conversations about this Article. 393

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most