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16 ConLawNOW 1 (2024)

handle is hein.journals/akjopal16 and id is 1 raw text is: JUDICIAL PREFERENCES AND AGGRANDIZEMENT EFFECTS Jason Marisam* INTRODUCTION Scholars and commentators are increasingly portraying the Supreme Court as self-aggrandizing and imperialistic.1 These aggrandizement commentaries claim that the Roberts Court is systematically empowering its own institution at the expense of others,2 stripping power from eveiy political entity except the Supreme Court itself,3 and accruing power at an alarming rate.4 Other scholars have treated these aggrandizement claims as a significant development in constitutional law theory and scholarship.5 But neither the aggrandizement commentaries nor any responsive assessments fully attempt to answer a couple of important questions: what is judicial aggrandizement, and what causes it? On the definitional point, the aggrandizement commentary can be confusing, sometimes coding as a power grab, cases where the Supreme Court declined to overturn a legislative action.6 While the separation-of- powers concept of aggrandizement is ambiguous, this essay defines judicial aggrandizement as a change that gives courts more power to set or influence policy relativeto other government decision-makers. Judicial opinionsthat shape policy outcomes by invalidating astatute, recognizing Associate Professor, Mitchell Hamline School of Law. 1. Josh Chafetz, TheNew Judicial Power Grab, 67 ST. LOUIS U. L.J. 635 (2023); Josh Chafetr, Nixon/Trump: Strategies of Judicial Aggrandizement, 110 GEO. L.J. 125 (2021); Mark Lemley, The Imperial Supreme Court, 136 HARV. L. REV. F. 97 (2022); Allen C. Sumrall & Beau J. Baumann, Clarifying Judicial Aggrandizement, 172 U. PENN. L. REV. ONLINE 24 (2023). 2. Chafetz, New Judicial Power Grab, supra note 1, at 636. 3. Lemley, supra note 1, at 97. 4. Sumrall & Baumann, supra note 1, at 42. 5. Jacob Eisler, Polarized Countermajoritarianism, 26 U. PENN. J. OF CONST'L L. 665 (2023); Andrew Coan, Too Much, Too Quickly?, U.C. DAVIS L. REV. (folthcoming), available at. https://papers.ssm.com/sol3/papers.cfm?abstract id=4714188. 6. See, e.g., Lemley, supra note 1, at 110 (discussing Rucho v. Common Cause, 139 S. Ct 2484, 2506-07 (2019)).

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