Judicial departmentalism and collapse into judicial supremacy

Howard Wasserman finds the term "judicial departmentalism" useful for describing what might also be called bounded judicial supremacy. He says, though, that "judicial departmentalism inevitably morphs into judicial supremacy," and the mechanism is easy to identify. Suppose that non-judicial officials try to follow some approach other than judicial supremacy. They will soon face difficulty. Just about any question of constitutional meaning can be brought within the judicial domain. Once in that domain, the principles promulgated in precedents of the Supreme Court will control. And so we end up with a form of judicial supremacy, but only after time, expense, and strife.

This arrangement of bounded judicial supremacy nonetheless remains different from standard judicial supremacy. On the standard understanding of judicial supremacy, Supreme Court decisions about constitutional meaning control directly for everyone by virtue of being Supreme Court decisions, rather than controlling only indirectly through repetitive litigation governed by vertical stare decisis.

There might not be much practical difference between these two approaches most of the time. But a Supreme Court that operates with a judicial departmentalist mindset may approach matters differently than one that operates with a judicial supremacist mindset. Additionally, the judicial departmentalist framework highlights the legal contestability of the Court's pronouncements within the judicial domain as well as the notion that the judicial domain has boundaries around it.